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Title IX and Its Effect on Men’s Collegiate Athletics

By Karen OwOc

Title IX: The Law Title IX prohibits sex discrimination against students and employees of

educational programs and activities at both public

and private institutions that receive federal funds.

Almost all private colleges and universities must

abide by Title IX regulations because they receive

federal funding through federal financial aid

programs used by their students. This education

law prevails upon all curricular and extracurricular

offerings from medicine, math and science to music,

dance and athletics.

In passing Title IX, Congress had two objectives:

1) To avoid the use of federal resources to support

discriminatory practices.

2) To provide individual citizens with effective

protection against those practices.

In 1975 the final regulation of Title IX was signed

into law and included provisions prohibiting

sex discrimination in athletics. The regulations

pertaining to athletics require that a recipient which

sponsors interscholastic, intercollegiate, club or

intramural athletics shall provide “equal athletic

opportunity” for members of both sexes.

The Losses to Men’s Athletics More than 2,200 men’s athletic teams have been eliminated

since 1981 to comply with the proportionality prong

of the 1979 Title IX Policy Interpretation (a rigid

affirmative action quota system). Thousands of male

athletes have been prohibited from participating in

collegiate sports while men’s athletic scholarships

and coaching positions have evaporated. The law,

which was designed to end discrimination against

women, is now discriminating against men. For

example:

• Boston University dropped its football program due to Title IX pressures after 91 years.

• University of San Francisco cut football after 64 years.

• Colgate University eliminated men’s baseball after 107 years.

• Cornell University’s men’s fencing team was discontinued after 98 years.

• Princeton University ended its wrestling program for fear of litigation due to an inability to satisfy “proportionality”.

• UCLA dropped its swimming and diving team in 1994 that had produced 16 Olympic Gold Medalists, 41 individual national titles, and a team title in 1982.

Patrick Tower

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

– Title IX of the Education Amendments of 1972

• UCLA abandoned its men’s gymnastics team ten years after it had produced half of the United States team that won the gold medal in the 1984 Olympics.

• Since 1982, over 64 schools have discontinued swimming and diving programs.

• 212 men’s gymnastics teams have been dropped since 1969 (2,544 roster positions lost); only 18 NCAA programs remain (216 roster positions).

• 355 men’s college wrestling teams (22,000 roster positions) have been eliminated over the past decade.

• James Madison University dropped men’s archery, indoor track, outdoor track, cross country, gymnastics, swimming and wrestling in 2006.

• Rutgers University eliminated men’s light weight crew, heavy weight crew, swimming, tennis, diving, and fencing in 2007.

• Men’s Olympic sports in colleges (such as,

gymnastics, baseball, swimming, track and field,

water polo, volleyball, soccer, tennis and wrestling)

are disappearing under pressure to achieve “gender

equity” under Title IX. Consequently, the pool

of U.S. Olympic talent has diminished due to the

tremendous loss of men’s Olympic sports in colleges.

These cuts inevitably affect high school participation

in that sport as well.

For example, in 1969 over 40,000 high school boys

participated in gymnastics in the U.S. with over

230 NCAA schools sponsoring men’s gymnastics.

Since that time, the sport has lost 92% of its varsity

programs (2,544 college roster positions eliminated)

and 75% of its participating boys. Only 18 schools

sponsoring men’s gymnastics remain today and only

two schools exist west of the Rockies - Stanford and

UC Berkeley.

• In the 2000 Summer Olympics, the U.S. sent 338

men and 264 women to compete. In 2004, nearly

equal numbers of men and women – an estimated

282 men and 263 women – represented the United

States in 2004. Consider a Washington Post Olympic

preview entitled “Female Athletes Continue to

Gain Ground” written in April 2004. The article

celebrated the equality in these numbers as evidence

of progress for women, but the number of women

competing was essentially unchanged. The so-called

victory for women was the elimination of more than

50 male athletes from the U.S. roster.

Title IX and Athletics: Equal Athletic Opportunity To help clear up the confusion from the broad proscriptive language of the statute,

Congress directed the Office of Civil Rights (OCR)

to provide regulations for the enforcement and

application of Title IX. Thus, the OCR produced

the 1979 Intercollegiate Athletics Policy Interpret-

ation of Title IX. The Policy Interpretation

identified three basic parts (Sections) of Title

IX as it applies to equal opportunities in athletic

programs, whereas institutions must meet all of the

requirements in order to be in compliance with Title

IX. These requirements encompass the following:

A. Athletic Financial Assistance (Scholarships)

B. Equivalence in Other Athletic Benefits and Opportunities

C. Effective Accommodation of Student

Interests and Abilities Title IX requires

“institutions to accommodate effectively

the interests and abilities of students to the

Title IX and Its Effect on Men’s Collegiate Athletics (Cont.)

extent necessary to provide equal

opportunity in the selection of sports offered

and levels of competition available to

members of both sexes”. Title IX does not

require institutions to offer identical sports

but an equal opportunity to play. This

section (Section C) has become the focus of

the 1979 Title IX Policy Interpretation and

its Three-Prong Test.

Effective Accommodation of Student Interests and Abilities: The Three-Prong Test The 1979 Intercollegiate Athletics Policy Interpretation of Title IX established three means

by which institutions can demonstrate compliance

of Section C – Effective Accommodation of Student

Interests and Abilities. They are collectively known

as the “Three-Prong Effective Accommodation Test”

(Three-Prong Test) or alternatively, as the “Three-

Part Test”. Compliance by an institution is assessed

in any one of the following ways:

Prong 1. Substantial Proportionality where

intercollegiate level participation opportunities for

male and female students are provided in numbers

substantially proportionate to their respective full-

time undergraduate enrollments. In other words, if

a school is 54% female, about the national average, then

about 54% of its athletes should be female.

Prong 2. Program Expansion where the

institution can show a history and continuing

practice of program expansion which is

demonstrably responsive to the developing interests

and abilities of the underrepresented sex (female

students). That means, if a school has added teams for

women or girls recently and over the years, it is probably in

compliance – although only for a period of time.

Prong 3. Interest and Abilities

Accommodation where the institution can

demonstrate that the interests and abilities of the

members of that sex have been fully and effectively

accommodated by the present program.

The Interpretations of the Three-Prong Test The federal courts’ interpretations of Title IX require women’s interests and abilities to be met at

a higher degree than those of men and as a result,

a rigid affirmative action quota system was created

out of Prong 1 that nullifies men’s equal protection

rights. Universities have attempted to comply

with Title IX legislation by creating, upgrading or

reinstating women’s teams; however, they have done

so by eliminating men’s teams.

• Many of the courts (Cohen v. Brown University;

Roberts v. Colorado State University; Favia v. Indiana

University of Pennsylvania) have held that Prong

1 (quota system) of the Three-Prong Effective

Accommodation Test carries the most weight in

the analysis of compliance.

• Many colleges and universities have supposedly

“complied” with Prong 1 by essentially cutting

men’s teams in order to create the illusion of

gender equity (proportionality). This means

that many women’s teams have not been helped,

but rather, men and men’s teams have been hurt.

• Although the OCR enforcement policy does not

require or encourage schools to cut men’s teams

to establish compliance with Title IX, the federal

Title IX and Its Effect on Men’s Collegiate Athletics (Cont.)

courts have set this precedent by

their judicial interpretations and

decisions. In the pivotal,

precedent-setting gender-based

discrimination lawsuit, Cohen

v. Brown University, the federal

courts’ interpretations of Title

IX validated the Three-Prong

Effective Accommodation Test

promoting a rigid affirmative

action quota system which has

changed how Title IX dictates

the way college athletics should

be run (1996 Clarification of

Intercollegiate Athletics Policy

Guidance).

The Solutions Title IX has become a complex

issue due to the problems that have evolved over its

interpretation. Change requires clarification and

redefinition of the Title IX language used in its

Policy Interpretation. It is quite clear that in order

to save men’s sports programs from further demise,

the Title IX Three-Prong Test must be revised with

the law’s original intent restored.

Conclusion Congress’ intent for the nondiscrimi- nation statute has been distorted and it is difficult to

embrace such a statute based on the Cohen opinion.

Title IX has greatly expanded opportunities for

women across the United States, but through misin-

terpretation and misapplication of the statute and its

regulatory tools through courts like Cohen, many uni-

versities are ultimately forced to

discriminate against men.

With revisions in the Policy In-

terpretation and with additional

clarification, universities can

comply with Title IX and ac-

commodate women and men’s

interests to the same degree.

Eliminating sports was never

the intent of Title IX, however,

out of the fear of being non-

compliant, institutions have

seen no other solution.

It is important to note that gender proportionality

is not enforced under Title IX in other educational

curricular and extracurricular offerings, such as,

chemistry, economics, drama, or marching band;

therefore, gender ratios should not be engineered

in sports. Measuring equality through exact pro-

portionality (a quota system), as the Cohen courts

and the Title IX 1996 Clarification suggest, without

regard to individual student interests and abilities

is both illogical and discriminatory. Fairness in

sports is about effective accommodation, awareness,

and equal opportunity and is first, and foremost, a

human right.

Patrick Tower

Karen Owoc is the Founder and Director of the Pacific Coast Classic.

She is also the Co-Founder and Executive Director of Fairness in

Sports dedicated to addressing the elimination of collegiate men’s

athlete programs. She has two sons who are both involved in sports.

www.fairnessinsports.org