The Boston Phoenix December 21 - 28, 2000
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If schools don't comply with Title IX, not only do they risk losing federal funding, but they can also be sued by students and employees. In the early 1990s, Brown University lost a long and messy lawsuit brought by a group of women athletes who charged that the school had cut their sports teams and failed to comply with the participation requirements of Title IX. The lawsuit scared college athletic departments in the Northeast and changed the way Title IX is enforced by the Boston branch of the OCR. Playing fair
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by Katharine Dunn
"OCR does not enforce the standards uniformly across the country," says Jody Mooradian, senior associate athletic director and senior women's administrator at Northeastern University. "Different districts will interpret Title IX differently and hold schools to different levels. The Boston office is very strict." Several schools say the Boston OCR demands that the relative proportions of athletes and students be within a single percentage point of each other. That means if a school's undergraduate population is 55 percent women, the students in the athletic department must be at least 54 percent women.
The Boston-area crackdown has forced local schools to take extra measures. Tufts, for example, saw the 1995 Brown lawsuit as an "incentive to take a good look at our commitment to gender equity," says athletic director Bill Gehling. The result: Tufts added two women's teams -- lightweight crew and fencing -- to its varsity roster, but opted not to promote men's club teams such as fencing and volleyball to varsity status. (Club teams differ from varsity in that the bulk of their financial support comes from fundraising rather than the university.) "Given the mandates of Title IX, we would risk [compliance] status by increasing opportunities for men," says Gehling. "We can't afford to do it without increasing opportunities for women."
Other Boston schools have also shifted the make-up of their athletic departments to comply with Title IX, though administrators claim that any loss of men's teams is unrelated to the law. Boston University cut its football team in 1997, and most news stories on the subject blame Title IX. In fact, football "was not dropped to achieve compliance," says Gary Strickler. Rather, the team was cut because it was "a huge financial drain" and there was little interest in it. But Strickler's protests may be just a matter of semantics. BU used some of the $3 million per year it cost to run football to add three women's teams: soccer, lacrosse, and golf. "Admittedly," says Strickler, "a lot of [those changes] were because of Title IX." Similarly, when Boston College demoted three men's teams from varsity to club status (a decision that will take effect in two years), Title IX was blamed in the newspapers but not by the administration. "We made a decision that for numerous reasons we had to scale back," says Lynn Holleran. But, she admits, "In doing so, we took into account gender equity."
"Athletic directors are in tough positions," says Kimberly Schuld of the Independent Women's Forum. "They're saying what they need to say to be protective of themselves, and they're repeating OCR. But OCR's policy in practice leads to quotas." And quotas, say Title IX reformers, don't belong in sports.
The contention that Title IX compliance demands quotas is the reformers' most compelling argument. They are not necessarily against Title IX and the opportunities it offers, but they are against its enforcement by the three-prong test. Take prong one, the "substantial proportionality" option. Title IX reformers say that this involves simply manipulating the numbers, when school athletics would be better served by allowing for the genuine differences between men and women. Men, they claim, are simply more interested than women in playing sports, so it's natural that varsity programs will be unbalanced.
Title IX reformers have other arguments. They say that the other two compliance options -- expanding athletic opportunities (prong two) and accommodating student interests and abilities (prong three) -- merely provide "holding patterns" behind which schools can shield themselves until they comply with the first option -- a quota. Reformers also claim that prongs two and three are ambiguous because the OCR doesn't provide schools with a standard objective test to determine whether their teams meet women's interests. Without such a test, proving equivalence via numbers becomes the least complicated method of compliance, and many schools choose it. "[Title IX reformers] say there should be ways to comply with the law other than with numbers," says Holleran. "The OCR would say there are other ways. But if you can't meet the requirements by other factors, you're left with numbers."
RELATED LINKS "Title IX: 25 Years of progress," gov. publication, 1997 "Empowering Women in Sports," Feminist Majority Foundation, 1995
Some of the most vocal reformers are current or former wrestlers whose sport has been hard hit, and they say it's because of Title IX. (Others argue that wrestling just isn't as popular as it once was.) Groups of wrestlers and others have formed Americans Against Quotas and Simply Common Sense, which both have a strong presence on the Internet, though it's not clear where else. Many of their arguments against Title IX are more knee-jerk, emotional reactions than thoughtful analyses. Their articles have titles such as "Title IX from Outer Space" and "Title IX: Defying Moral Values?", in which the author argues that the OCR violates the moral obligation of honesty by refusing to admit that Title IX is at fault for the "destruction" of men's programs. Another article's subtitle reads: "Don't credit Title IX for the boom in women's sports: women would have inevitably taken to athletics with the same fervor with which they have taken to other fields."
These arguments do little to persuade Title IX's defenders, though many of them admit there are problems with its enforcement. In the first place, the Department of Education argues that athletics require numerical comparisons because men and women must be segregated in sports. Because schools have the right to control the number of teams and sports they offer, and because Title IX policy requires nondiscrimination, it follows that the numbers must be compared -- but the comparison doesn't amount to quotas. And Donna Lopiano, executive director of the Women's Sports Foundation, says it's schools' own fault if they feel obligated to use the "quick and dirty mathematical assessment" known as proportionality. "The reason schools are crying about the proportionality requirement is that for 20 years, they were too lazy or disregarding of the law to add sports," says Lopiano. "They painted themselves into a corner by not taking advantage of the most liberal ways to comply [prongs two and three] and are now arguing that the most difficult way to comply is too onerous." BC, BU, Northeastern, and Tufts opted not to use these methods, choosing instead to focus on proportionality.
Title IX reformers like Schuld predict that a "significant portion" of the policy will change in 12 months with a Republican in office. "[They've] already indicated interest in seeking changes, in giving opportunities for all according to interests," she says. Because the guidelines that address athletic programs were developed by the Office of Civil Rights, rather than having been written into the original legislation, whoever directs the OCR can change them. Ideally, the IWF would like to see the government stop penalizing schools that don't meet proportionality, and instead start offering financial incentives to schools that find creative ways to fund both men's and women's teams. But some women's groups say we're far from ready for any easing of regulations. "While progress has been made, the majority of schools are not in compliance with Title IX," says Lopiano. "A system has to be put in place where OCR is more aggressively enforcing the law and providing a remedy for our daughters.""If you take away protections, you could lose equality, especially in an area that has been so male-dominated," says Ann Sanders, executive director of the New England Women's Fund, a group that advocates increased opportunities for women in sports. "We can't afford not to keep teeth in the legislation. People would scream if I say women are oppressed, but [sports for women] hasn't been around [that] long."
Maybe, then, all it will take is a few generations of women athletes making headlines and appearing in professional sports matches on daily TV before a new "greatest moment in women's sports history" will finally eclipse the law that made it all happen.
Katharine Dunn is a freelance writer living in Cambridge.
