Title IX is 40 Years Old: Why Aren’t We There Yet?

We
need to protect
this investment in women
and girls, not just against the
noisy minority but also against
those schools that play
unsavory games to skirt
the law.

Nancy Hogshead-Maker, JDNancy Hogshead-Maker, JD

Title IX of the Education Amendments of 1972 prohibits sex discrimination in any educational program that gets financial assistance from the U.S. government. Dr. Bernice “Bunny” Sandler, known as the godmother of Title IX, called it “the most important law passed by Congress since women got the right to vote.” Forty years later, where do we stand?

Last month the University of Michigan’s new SHARP Center for Women and Girls hosted the national conference “Title IX at 40: Progress and Promise, Equity for All.”

The SHARP (Sport-Health-Activity-Research-Policy) Center opened last fall as a collaboration between the university’s Institute for Research on Women and Gender, its Department of Kinesiology and the national Women’s Sports Foundation.

Featured speakers included Nancy Hogshead-Makar JD, who won three gold medals in swimming at the 1984 Olympics. Today she’s an attorney pursuing equity as senior director of advocacy at the Women’s Sports Foundation and a professor at the Florida Coastal School of Law.

Title IX goes far beyond sports. It covers the gamut, including: academics, admissions, employment, career training, standardized testing, math and science, students who are pregnant or parenting and sexual harassment and assault. But the persistent sticky issue is equity in athletics because most sports are segregated by sex.

What is equity? She recommends “the toast rule.” Maybe in your childhood it was pie, cake or pizza. One person cut the pieces and everyone else got to choose a piece, leaving the last one to the person who did the cutting. It’s the classic way to ensure the pieces are equal and fair.

Equity is about comparison. Is a disgustingly grungy men’s bathroom a civil rights issue? You have to look at the women’s restroom to find out. If the women’s room has twice the space and three times the maintenance, the men have every right to complain.

Suppose the women’s teams have ratty uniforms. Are the men’s team uniforms equally ratty? What about scholarship dollars? Locker rooms? Equipment? Transportation and hotel rooms for away games? Playing opportunities are only part of a much larger picture.

In Playing with the Boys: Why Separate Is Not Equal in Sports (Oxford U. Press, 2007), Eileen McDonagh and Laura Pappano argue for an increase in sex-blind athletics. This has its limits; women have an edge in physical endurance while men have more brute strength. Defining equity in an area so closely tied to bodies is an ongoing challenge.

Integrating teams such as swimming, track or rowing has other advantages besides fairness. Women who compete side by side with men gain their respect. As a result, there’s much less sexual assault in mixed-sex teams.

Blaming Title IX

Athletics participation opportunities count as compliant with Title IX if they are substantially proportionate to the gender ratio in undergraduate enrollment, fully meet the interests of the underrepresented sex or show continual expansion toward equity. Don’t confuse this with full compliance. After 40 years of continual expansion toward equity, shouldn’t a school have reached that goal by now?

Complaints against Title IX revolve mostly around the elimination of certain men’s teams in the interests of equity. What’s the truth?

“In the aggregate, opportunities have grown for both sexes,” Hogshead-Makar said. In 1972–73 fewer than 10% of high school athletes were girls. Over the next nearly 40 years their numbers soared. By 2010–11 girls made up 41% of high school athletes. Boys’ numbers also increased during the same period.

NCAA colleges reported a similar increase. Women were 15% of college athletes in 1972–73 and 43% by 2009–10 (by which time they were 56% of the student body). As in high school, the men’s numbers also increased.

So what about the dumping and adding of sports? In high schools and college Divisions II and III, women’s and men’s sports are all expanding. But some men’s sports are getting dropped in Division I, allegedly due to Title IX. What’s going on here?

Follow the money. The Knight Commission on Intercollegiate Athletics studied spending in the Football Bowl Subdivision, the top tier of Division I. From 2005 to 2008, academic spending per student at those schools stayed virtually flat while athletic spending per athlete increased by over a third, from $61,709 in 2005 to $84,446 three years later. “I wish my 401K was doing as well,” she said.

Schools in Division I are putting more and more money into fewer and fewer athletes. The big bucks go to the big sports, while low-profile sports get pushed farther toward the margins or eliminated.

Cartoonist Mike Keefe drew a player whose shirt reads “College Football” sitting on a gigantic sack of money. Down on the ground is a disconsolate guy with tennis racket holding a gym bag that says “Discontinued Men’s Sports.” The football guy is shouting down to his fellow athlete, “It’s Title IX’s fault!”

Hogshead-Makar’s son is six years older than her daughters and he wants a lot more things than his parents will buy him. “I could blame the girls; they’d want things too. I could blame my husband, who says we have to distribute our resources equally,” she said. Likewise, Title IX is not to blame for the results when schools choose to concentrate their resources on football and not fund wrestling.

Investment and advocacy

Research by the Women’s Sports Foundation found that girls who participate in sports are more successful academically and will complete more education. They are less likely to become pregnant, use drugs, become obese or develop breast cancer, heart disease, osteoporosis or depression.

Girls who play high school sports are 20% more likely to graduate and 20% more likely to attend college. Recent research by University of Pennsylvania economist Dr. Betsey Stevenson (currently on leave at Princeton University NJ) credited Title IX and high school girls’ increased sports participation for:

  • 20% of the rise in women’s educational attainment in the generation after Title IX became law
  • 10% increase in women working full time
  • 12% spike in women in traditionally male-dominated occupations such as accounting, law and vet medicine

“This is a good investment of our tax dollars,” Hogshead- Makar said. Overall 80% of Americans approve of Title IX. She called the other 20% “the noisy ones.”

We need to protect this investment in women and girls, not just against the noisy minority but also against those schools that play unsavory games to skirt the law. One such game is roster management, making women’s teams larger than men’s to improve the ratio of opportunities. This is phony equity, since the student athlete on a mega-team gets a lesser experience with little chance to play.

In an extreme case of roster management Quinnipiac University CT tried to abolish women’s volleyball in favor of cheerleading, a lower-cost activity that accommodates unlimited numbers of participants. A federal judge ruled in 2010 that competitive cheerleading is not yet organized enough to count as a varsity sport for Title IX.

Speak up when you see inequities. “Make sure you have your team behind you,” she counseled coaches and administrators. Explain Title IX to student athletes and others across campus, creating alliances.

Speaking up can be risky. Coach Roderick Jackson complained that his girls’ high school basketball team in Birmingham AL was not being treated equally with the boys’ team; their uniforms, equipment and other aspects were inferior.

He was fired, took it to court without a lawyer and lost. The Women’s Sports Foundation backed his appeal to the U.S. Supreme Court, which ruled in his favor under Title IX. Even though he was not the personal victim of sex discrimination, the law protected him from retaliation for reporting sex discrimination against others, it ruled.

Legal action for gender equity in athletics can draw on other bases in addition to Title IX: the equal protection clause of the U.S. Constitution, public accommodations laws, the Ted Stevens Olympic and Amateur Sports Act of 1998, the Equal Pay Act and Title VII.

Lawsuits are a last resort; plaintiffs say it’s the hardest thing they ever did. Bringing suit can drain spirits and wallets, challenge relationships and incur the risk of illegal retaliation. But having the potential for a lawsuit in the background adds clout to your complaints.

She suggested filing a complaint with the OCR about suspected inequities at a specific school to get the ball rolling. Even anonymous complaints can bring action. Given the OCR’s recent increased activity against specific schools, this tactic is more likely to work now than ever before.

To be an unofficial advocate, be a friend to coaches who get screwed. Support people in your community who are vilified unfairly. “Case law now is about as good as it’s going to get. We need grassroots support,” she said.

Contact:
nhogshead@WomensSportsFoundation.org  


Cook, Sarah Gifford. (2012, June). Title IX is 40 Years Old: Why Aren’t We There Yet? Women in Higher Education, 21(6), 1-2.

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