Check out this article about the efforts of the College Sports Council in the area of Title IX reform – http://savingsports.org/newsroom/display_releases.cfm?id=24. If you are concerned about the future of amateur wrestling, there’s also an online petition attached that I think is worth signing. Here’s the rundown on Title IX.
Title IX of the Education Amendments of 1972, commonly referred to simply as Title IX, prohibits gender discrimination in educational programs that receive federal funding. One type of discrimination prohibited by Title IX is failure to provide equal opportunity in athletics. Specifically, Title IX states:
“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.”
Title IX is implemented by the Department of Education’s (DOE) Office of Civil Rights (OCR). DOE has promulgated implementing regulations at 10 CFR part 36 (http://www.ed.gov/policy/rights/reg/ocr/edlite-34cfr106.html). While few argue with the underlying purpose of Title IX, implementation of the statute by OCR has resulted in the elimination or curtailment of many collegiate men’s Olympic sports programs, such as track and field, swimming, wrestling, and gymnastics. Specifically, in 1972 OCR published a Policy Interpretation of the Title IX requirements. This Policy Interpretation described three specific methods of complying with Title IX in the area of equal athletic opportunity:
(1) Showing that intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments; or
(2) Where the members of one sex have been and are underrepresented among intercollegiate athletes, whether the institution can show a history and continuing practice of program expansion which is demonstrably responsive to the developing interest and abilities of the members of that sex; or
(3) Where the members of one sex are underrepresented among intercollegiate athletes, and the institution cannot show a continuing practice of program expansion such as that cited above, whether it can be demonstrated that the interests and abilities of the members of that sex have been fully and effectively accommodated by the present program.
Unsurprisingly, in order to avoid litigation schools have relied most heavily on the first method, known as substantial proportionality. To comply with the proportionality method, colleges and universities simply ensure that the gender ratio of undergraduate student enrollment is proportional to the gender ratio of the total number of athletes on its varsity sports teams. In order to make the numbers work out, many colleges and universities have been forced to either cut men’s teams all-together, or reduce their roster sizes. This has hit sports like wrestling especially hard, with some sources reporting that a total of 171 wrestling teams have been eliminated over the past 30-years due to Title IX (see http://www.athleticscholarships.net/title-ix-college-athletics-6.htm). Like a lot of other antidiscrimination laws, the underlying purpose of the Title IX statute is laudable. But the problem is that these important laws often degenerate into pure quota systems when the rubber meets the road during implementation. One reason this happens is surely the reality of enforcement and compliance – i.e., it is easy to enforce and, conversely, easy to demonstrate compliance with a quota. It’s much more difficult to demonstrate compliance via methods (2) and (3).
But there is another, more complex, dynamic at work here: social engineering. While Title IX simply outlaws discrimination in educational activities, including athletics, the statute has also been interpreted by the courts as a tool to correct the wrongs that society has perpetrated against women athletes in the past. This idea is explained by the Ninth Circuit Court of Appeals in Neal v. Board of Trustees of the California State Universities, 198 F.3d 763 (9th Cir. 1999). Neal involved a claim that California State University’s decision to reduce the number of spots on its men’s wrestling team, which as undertaken to meet the substantial proportionality guidance described above, violated both Title IX and the Equal Protection Clause of the US Constitution. The Court disagreed. Responding to an argument that gender-conscious decisions are appropriate only when necessary to ensure that opportunities are provided to males and females in proportion to their relative levels of interest in sports participation, the court stated:
“Title IX is a dynamic statute, not a static one. It envisions continuing progress toward the goal of equal opportunity for all athletes and recognizes that, where society has conditioned women to expect less than their fair share of the athletic opportunities, women’s interest in participating in sports will not rise to a par with men’s overnight. The percentage of college athletes who are women rose from 15% in 1972 to 37% in 1998, and Title IX is at least partially responsible for this trend of increased participation by women . . . . Title IX has altered women’s preferences, making them more interested in sports, and more likely to become student athletes.”
This quote starts out badly for textualists like me - whenever a text is described as “dynamic” or “living” it usually means that the interpreter is about to make it say what it does not. That aside, I think this quote is a great illustration of how the courts have gone wrong with this statute. The Court rejects the argument that gender-conscious decisions (which are exactly what Title IX is designed to prevent) should be exercised only when necessary based on level of interest because women are not capable of properly expressing their level of interest due to social conditioning. Instead, the Court (and in the Court’s estimation Congress) has decided that they know what the female population’s level of interest really is: the level of interest that makes their participation substantially proportionate to their respective enrollment.
I’d prefer to see the playing field leveled by providing gender-neutral athletic opportunity; individuals deciding whether or not they are interested in participating; and letting the proportion of men to women athletes fall where it may.
