Title IX Pros And Cons

Title IX and the Education Amendments of 1972 were created to defend equal opportunities for women of all ages. Since its inception 44 years ago, women have seen impressive strides as well as disappointing failures. Social prejudice continues to exist limiting female participation opportunities, benefits for female athletes, coaching opportunities, and increased exposure to sexual assault and abuse. Few institutions treat female athletes equally due to the lack of enforcement by collegiate athletic departments. The enforcement of Title IX has not been a priority among far too many educational institutions leaving women open to discrimination and mistreatment.

Title IX is arguable the most pivotal law in regard to granting participation opportunities

for female student athletes. The two main issues concerning student athletes and prospective student athletes are “whether equal opportunity must be provided when separate teams are provided for males and females, and if so, what constitutes equal opportunity; and whether students of one sex must be permitted to try out and participate on the other sexes team if only one team is offered.” (Stevens, 2004) In 1979 a three- part compliance test was established to offer academic institutions three different yet independent ways to show how they are providing equal athletic opportunities to their male and female students. The three components of Title IX provide the guidelines for measuring compliance within athletic departments. The first prong component “Effective Accommodations of Interests” was set in place to “monitor female participation and to ensure that participation was proportional to female enrollment at that particular school.” The second prong component “Financial Assistance” was set in place to determine that “financial assistance must be strictly proportional. Although this is typically a collegiate requirement, it can also be applied to private high schools that provide tuition waivers to athletes, if not already equally distributed between female and male athletes.” (Stevens, 2004). The third prong component is “Equivalence in Other Benefits and Opportunities” this component was set to inform athletic departments what should be available to both female and male athletes. Items such as “quality of coaches, uniforms, practice and game schedules, facility access, facility quality, equipment quality and quantity, officials, and a similar number of sport offerings and competitive levels” (Stevens, 2004).
However, many of the commissions recommendations manipulate the ways in which education institutions tally athletic participation by men and women under this three-part test. In 1979 The Office of Civil Rights (OCR) also issued its first set of regulations to provide guidance to university athletic programs on how to interpret Title IX (U.S Department of Education, 2000). These regulations made it clear that gender discrimination in intercollegiate athletics was a violation of Title IX. A section entitled “Equal Opportunity” explained that a recipient of federal funding must “provide equal athletic opportunity for member of both sexes”. However, the Department of Health, Education, and Welfare (HEW) determined that “unequal expenditures for men’s and women’s programs would not necessarily constitute a violation of this section, but the Secretary could consider such factors in his or her overall assessment of equality” (U.S Department of Education, 2000).
In 1984, there was some uncertainty about whether Title IX applied only to specific programs receiving federal funding or to the entire educational institution.

The Supreme Court resolved the issue of uncertainty in Grove City vs Bell, by determining that Title IX only applied to the particular departments receiving federal financial assistance, and not to the entire intuition (U.S Department of Education,2000). The ruling was based on the fact that Title IX did not distinguish between direct institutional assistance and aid received by the school through its students. Although few athletic departments receiving federal funds directly, this ruling made it possible for almost every university’s athletic program to fall short of compiling with the laws of Title IX. Cohen v. Brown University is the most significant hard fought case involving the first prong of Title IX “proportionality”. Brown University eliminated two men’s teams (water polo, golf) and two women’s teams (gymnastics, volleyball) from the universities donor funded varsity status (Stevens, 2004). Female students sued Brown University claiming that the University had violated their rights under Title IX by eliminating these two sports. The plaintiffs also argued that Brown did not make a sufficient reduction in men’s sports or add another women’s team to compensate before eliminating the two women’s programs. The court found that the universities student population and athletic compensation were not equally

proportionate to each other, and so Brown failed the first prong of the compliance test (Heckman, 2003). The settlement required Brown University to provide athletic opportunities for females in close proportion to the percentage of female athletes. In Penderson v. Louisiana State University female students sued LSU for denying the students request to change two club teams (soccer, softball) to varsity status. The Louisiana district court found the university had violated Title IX by sexual discrimination and failure to comply with the first prong of “effective accommodation” and the third prong of “equivalence in other benefits and opportunities” (Heckman, 2003).
In recent years Title IX has seen an influx in cross-over cases. A cross-over case is a term used to describe a case when an individual of one sex competes or wants to compete on an athletic team of the opposite sex. Title IX regulations allow the “operation of separate sex teams in certain situations, specifically when participation is based on competitive skill or when the team competes in a “contact” sport” (Heckman, 2003). Meaning, that if a sport was deemed a “contact” sport, then under the current regulations it was legal for a team to exclude a participant if they were a member of the opposite sex. In Barnett v. Texas Wrestling Association female members of two high school varsity coed wrestling teams were banned from competing against male wrestlers by the state interscholastic wresting association (Barnett v. Texas Wrestling Ass’n,1998). Because Title IX has blurry regulations on contact sports for women. The district court found that wrestling was indeed a contact sport and the wrestling association was able to exclude the female athletes from participating without legal repercussions from Title IX (Barnett v. Texas Wrestling Ass’n,1998).
In Mercer v.

Duke University, a female place kicker alleged sexual discrimination when she was not selected for Duke Universities football team, one of the contact sports in the Title IX regulations. Although no woman had ever participated on the team Duke University did not specifically say that football at the university was not a coed team (Stevens, 2004). North Carolina district court granted the university’s motion for summary judgment, concluding that the “regulation did not contain an exception for any particular position that may not require physical contact” (Stevens, 2004). On Appeal, the fourth circuit court reviewed the “separate teams” subsection of Title IX and noted that Duke University had allowed this woman to tryout for coed sports team deeming her qualified to be a member of the team (Stevens, 2004). The verdict in this case is the first documented case awarding punitive damages in a Title IX athletics related case. Title IX’s purpose is to prevent discrimination against women in educational forums, but by institutions diminishing Title IX’s mandate, the commission is allowing and justifying the rationalization of on going discrimination against

women.
Athletic departments are more frequently involved in cases where a student is sexually harassed more than any other departments that handles university disciplinary proceedings (Hogan, 2006). When law researchers at the University of Massachusetts and Northeastern University reviewed 107 reported sexual assaults at 30 NCAA Division 1 schools over a 2-year period, they found that “10 of the school’s student athletes comprised only 3.3% of the male student body, but were involved in 19% of the documented and reported sexual assaults” (Dabs, 1998). Many colleges and universities handle sexual harassment/ assault cases in a poor manner simply because most of these institutions do not understand their obligations under Title IX. The U.S. Department of Education’s Office for Civil Rights is now investigating 106 colleges and universities due to concerns about whether the schools violated Title IX in their handling of sexual violence cases (U.S Department of Education, 2016). In the case J.K v. Arizona Board of Regents “The plaintiff, a student at Arizona State University, was raped in her dormitory room by a ASU student athlete (Darnel Henderson), whom the defendant ASU administrators had arranged to admit to ASU and whom the defendants failed to supervise adequately, despite knowing firsthand that Henderson had engaged in repeated horrendous sexual harassments during a ASU summer program for incoming first year students” (Arizona District Court,2008).
His actions were so appalling and intolerable that Arizona State University expelled Henderson from the summer program and evicted him from the dorms. Then at the beginning of the fall semester re-admitted him to ASU and to the campus dormitories, without taking a single precaution to protect the female students from potential harassment (Arizona District Court,2008). The lack of supervision lead to the harassment and rape of the plaintiff and without a doubt violated her rights under Title IX. The court deemed Darnel Henderson guilty and Arizona State University liable for the sexual assault, which resulted in awarding the plaintiff a settlement for damages.
December 7, 2001, visiting high school recruits and football players at the University of Colorado sexually assaulted three female students. Because of the nature of these assaults, this launched an extensive investigation of the University of Colorado athletic departments officials and overall policies. When two of the sexually assaulted students filed suit under Title IX the universities lack of enforcement and control of student athletes was brought to light in national headlines. The plaintiffs alleged that university officials, including the head coach of the football program Gary Barnett, knew that similar events had occurred in the past (McCart, 2008). The plaintiffs also claimed that their assaults were part of a pattern to which the university had actual knowledge of and remained consciously unresponsive. The court stressed that “Title IX liability must be circumscribed to situations in which the school has notice of its potential liability” (McCart, 2008). This decision created crucial regulations for when schools fail to establish guidelines and supervision of student ran programs.
Title IX has been revered as one of the most successful civil rights statutes in history. Title IX has somewhat leveled the “playing field” for women and girls, however there is still a lot to be done to achieve absolute equality. Under Title IX women still fall short in participation opportunities, athletic scholarship dollars, department budgets, and many other aspects of sport and athletic programming. Under Title IX’s current form and policies, institutions can legally comply with athletic participation in one of the three ways (Stevens, 2004). This flexibility allows educational institutions a choice in which test prong they choose to follow and adhere too. Title IX’s purpose is to prevent discrimination against women in educational forums, but by institutions diluting Title IX’s mandate, the commission is allowing and justifying the rationalization of on going discrimination against women. Many colleges and universities presently handle Title IX infractions poorly based on lack of knowledge of what the institutions obligations are under the law. Congress should clarify and impose a national statue of limitations to govern Title IX lawsuits and failures to comply with the law. The enforcement of Title IX has not been a priority among far too many educational institutions leaving women open to discrimination and mistreatment.