Sports Media Review by Jonathan Weiler

Tuesday, July 11, 2006
1:33:00 PM EDT

Title IX is a vast and complex subject, and discussion of it typically involves misconceptions about its intent, application and, most directly, its impact on men’s collegiate athletics. But, despite its complexity and regardless of how commonly mis-understood it is, one would hope that a New York Times writer, devoting a full column to the issue, would do a better job of it than John Tierney did this morning. I have written in unflattering terms about Tierney before, over at the Gadflyer, a political blog to which I regularly contribute. Tierney’s analysis is often shallow and disingenuously partisan. Today’s column, “Let the Guys Win One” is neither. But, its omissions provide a useful starting point for exploring Title IX in greater depth.

Tierney’s key paragraphs follow:

“When Title IX was enacted in 1972, women were a minority on college campuses, and it sounded reasonable to fight any discrimination against them. But now men are the underachieving minority on campus, as a series by The Times has been documenting. So why is it so important to cling to the myth behind Title IX: that women need sports as much as men do?”

Yes, some women are dedicated athletes, and they should be encouraged with every opportunity. But a lot of others have better things to do, like study or work on other extracurricular activities that will be more useful to their careers. For decades, athletic directors have been creating women’s sports teams and dangling scholarships and hoping to match the men’s numbers, but they’ve learned that not even the Department of Education can eradicate gender differences. </>

“College football is such a mass spectacle that it can’t really be compared with other sports. It’s more of a war rally or religious revival. But football’s unique popularity unfairly penalizes men because colleges fear flunking the “proportionality” test, which is the safest way to comply with Title IX. If the school doesn’t have enough female athletes to offset the huge football squad, it has to cut other men’s teams — or get rid of football, as some schools have done.”

Lately, though, as colleges have struggled with the declining number of men on campus, a few small schools have dared to start football teams. They argue that even if they end up with more male athletes, they’re still being fair because more men want to play sports. It’s not clear if this approach could survive a Title IX lawsuit; advocates for women’s sports complain it’s still discrimination. But the results on campus are already impressive, as Bill Pennington described in The Times yesterday.” 

Like many critics of Title IX, Tierney argues that women are simply not as interested in sports, either playing or spectating, as men. Consequently, many argue, it’s an unfair and unnecessary government imposition on higher education to mandate rough parity in opportunities for female athletes and male athletes – a misguided effort at social engineering. And, it’s surely true that Tierney is right in the broadest sense: in general, men are more interested in sports than women. However, one of the key premises of Title IX and the subsequent application of its language to intercollegiate athletics was that, if given the chance, women would, in fact, take full advantage of the opportunity to participate in competitive sports. And, the numbers appear to bear that premise out. In 1972, the year Title IX was passed, there were about 40,000 women playing college sports. By 1999, there were roughly 160,000, a four fold increase. Competing in college athletics, whether on crew, in gymnastics, basketball, tennis or any other sport you care to name, requires substantial commitment. Therefore, it would be hard to deny that there was genuine interest on the part of women. Title IX, it can fairly be argued, met that interest.

Furthermore, though Tierney rightly points out that “proportionality” is only of the possible modes of compliance, he wrongly intimates that other possible methods of compliance are likely to lead to litigation. In fact, there is a three-pronged test for determining compliance with Title IX:

1)      “substantial proportionality” – whereby a school shows that it is providing comparable opportunities for participation by roughly comparable spots on varsity teams.

2)      “history and continuing practice”—looking at an institution's “good faith expansion of athletic opportunities through its response to developing interests of the underrepresented sex at that institution.”

3)       accommodating interests and abilities of the underrepresented sex- requiring the institution to gauge level of interest in men’s and women’s athletics and provide opportunities in accordance with that expressed level of interest. So, in theory, according to the third prong, if a school only offers 30% of its varsity spots to women’s teams, but that matches the level of interest, then a school would be deemed to be in compliance.

As I said at the top, Title IX, and its accompanying enforcement mechanisms are complex. And, the issue has certainly been intensively litigated over the years. But, what Tierney neglected to mention is that the Bush administration issued a clarification of the three prongs in 2005, which Conservatives hailed as a significant victory and which made compliance with prong three easier than it had been previously. And, even prior to the 2005 rules clarification, roughly 70% of schools achieved compliance with Title IX via the third prong. If a school administers an internet survey, according to the new rules clarification, and women express a lack of interest in sports relative to men, then proportionality becomes moot.

Tierney also makes much of the new trend in Division three schools toward adopting football, as recently outlined in detail by Bill Pennington. But, Tierney misleadingly raises the specter of litigation in suggesting that that trend might fall prey to Title IX lawsuits. That intimation is based on exaggerated assumptions about the prevalence of litigation. In part this is an outgrowth of a larger axe Tierney has to grind with the (largely mythical) litigation boom in America. Of more immediate relevance, as already noted, is Tierney's failure to acknowledge just how common it is for schools to comply with Title IX without meeting the substantial proportionality test. Furthermore, as the Pennington article points, many Division three schools, for example, are not in compliance, but a lack of enforcement has rendered their non-compliance irrelevant.

Finally, given the extent to which schools are adding football programs - Pennington says fifty schools have added or re-instated football in the past decade – it’s hard to believe that so many schools would be doing this if the threat of lawsuit were really that serious. Pennington further notes that most of the schools that have added football are Division Three schools that do not offer scholarships to their athletes. In other words, football can be a financial windfall at a small school, driving enrollments higher while costing relatively little to operate. By contrast, Pennington notes, 25 schools have dropped football in the past decade, and most of those are at scholarship-based Division I schools. This fact illuminates another important issue that Tierney has missed: that sometimes, when schools drop football, Title IX is the convenient scapegoat masking other institutional reasons for doing so. In 1997, Boston University famously dropped its 100-year old football program. In response, Sports Illustrated's Rick Reilly, a BU alum, wrote an angry column lambasting Title IX. But, BU football was costing the school $2 million a year, had become uncompetitive and was long a target of interest of then BU president John Silber.

As many studies have shown, there is no compelling justification for college teams to carry the currently allowed 85 scholarship and the more than 100 players that teams typically field. At a D-III school, this may be overkill, but as Pennington shows, it’s not an economic drag, since every player on the team is paying tuition. At scholarship schools, by contrast, most of whose football programs lose money, the situation is very different. D-I football programs are costly, and they make an inviting target for schools looking for ways to comply with Title IX. At D-III schools, the answer to adding a men’s football team is simple – add some women’s teams, too. That’s equal opportunity. But, even three decades after Title IX, the expenditure gap between men’s and women’s athletics is vast and football is a big reason why. For Tierney to frame the debate about football and athletics as unfair to men gets backwards the extent to which institutions bend over backwards to accommodate football.

If anything, Title IX has, at least, injected a modicum of rationality into a school’s view of its football program.

 

 

 

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