• 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 ....

The actual text of "Title IX" is relatively brief. However, it is the body of administrative regulation governing the implementation of Title IX (and the courts interpretation of such) which is the center of controversy. These rules, developed by the Department of Education and the Office of Civil Rights (OCR), The 1979 Policy Interpretation (and a subsequent "Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Test."), provide that as part of determination of compliance with the TITLE IX statute, the OCR (Office of Civil Rights) will apply the following three-part test to assess whether an institution is providing nondiscriminatory participation opportunities for individuals of both sexes:

1. Whether 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 under represented among intercollegiate athletes, whether the institution can show a history and continuing practice of program expansion which is demonstrably responsive to the developing interests and abilities of that sex; or
3. Where the members of one sex are under represented 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.

The Problem
Many hold the viewpoint that the "quota" standard -- equal numbers of male/female participants and equal amount of resources for programs between male and female sports -- has led to the elimination of many "non-revenue" male collegiate sports such as wrestling in order to achieve equality in numbers of male and female athletes at a given institution.

The Mat, an amateur wrestling website, has noted that...

• the National Collegiate Athletic Association conducted its first Gender Equity study in 1992. The five-year follow up study published in 1997 showed a disturbing downward trend for male athletes. During that time period, more than 200 male teams and over 20,000 male athletes had disappeared. Over those same five years, the number of female athletes increased by only 5,800 - nearly four males dropped for each new female.
  ... Ninety-five percent of the gains for female athletes were seen at the Division I level. At the Division III level where there are no athletic scholarships and student athletes play purely for the love of the game, the effect has been disastrous. The five-year span of this study shows that in Division III, only 178 female athletic opportunities were added and male opportunities were reduced by over 9,000. That represents 20 males dumped for every female gained in Division III alone.

  When athletic departments sit down each year to face their growing deficits and shrinking revenues, gender equity is not a principle, it is a budget item. The Office for Civil Rights and the NCAA have forced schools into the unsavory position of needing to meet an illegal gender quota to be safe. Athletic directors often take the easiest way out of their gender equity problems by cutting the number of male participants and male dollars. The gender-quota formula fails to allow for consideration of actual athletic interests for either sex. Today�s Title IX application discriminates against men, and that is a violation of the statutory language and the Fourteenth Amendment.

West Virginia colleges Alderson-Broaddus, Bethany College, Concord College, Fairmont State, Glenville State, Marshall, West Virginia State, West Virginia Tech, and Wheeling Jesuit College are included in the list of 267 collegiate wrestling programs discontinued since 1972.

The problem is apparent: Collegiate wrestling opportunities, as well as other "non-revenue" male athletic opportunities, have drastically diminished in number in the past 25 years.

The cause of the "disappearing wrestling program syndrome" is open to debate. Is TITLE IX to blame? Many would answer yes. Others say that TITLE IX is simply a convenient excuse used by college administrators to eliminate non-revenue sports.

Do Quotas Exist or Not?
Defenders of the current TITLE IX status quo point out that "statistical balance" is only one way in which an educational institution may demonstrate compliance, and the claim is made that no such demand for statistical equivalence is in force. The following is an excerpt of a letter from Eleanor Baker of the Office for Civil Rights, Washington, D.C.:

• Please be aware that Title IX does not require schools to drop men's programs. The Title IX regulation requires only that equal athletic opportunities be provided to students of both sexes. As long ago as 1979, the Office for Civil Rights made clear that a college can demonstrate compliance with Title IX in any one of three ways: by showing that it has a program of expanding the opportunities for the underserved sex, by showing that it meets the interests and abilities of that sex, or by showing that the number of male/female athletes is proportionate to their enrollment. All too often, colleges look only to that last method.

  Colleges have had more than 20 years to come into compliance with title IX. Unfortunately, in these times of increasingly scarce dollars for athletics, some colleges may use Title IX as a justification for dropping less profitable or less popular men's sports. That is not what Title IX requires. However, neither does Title IX prohibit a school from dropping a particular sports program. Rest assured that the Office for civil Rights does not encourage this, though, and is always disappointed whenever athletic opportunities for any student are reduced.

  Eleanor Baker, Team Leader
  Customer Service Team
  Office for Civil Rights
  

• As usual in Washington, the quota-enforcers heatedly deny that quotas are actually mandatory, insisting that schools can comply by passing one of two other tests. They can show that women are satisfied with existing offerings--but then a complaint itself is apt to serve as evidence of dissatisfaction. Or schools can show a pattern of continued expansion of women's programs, which is to say continued progress toward proportionality. In practice, according to the American Football Coaches Association and other critics, proportionality is the "primary emphasis of enforcement," and the other two tests, though they may furnish the regulators some facade of deniability against quota charges, offer no enduring safe harbor of compliance.

What Have the Courts Decided?
Notwithstanding claims made by officials of the Department of Education or others, the true effect of the current TITLE IX legislation may be seen be examining recent court cases relating to its implementation. Despite claims to the contrary, there is substantial evidence that demands for statistical proportionality ARE made by the courts in many TITLE IX cases to the exclusion of consideration of the other two "tests of compliance."

The case of Cohen v. Brown University is considered to be a "landmark" case in TITLE IX litigation.

In May 1991, Brown University demoted four varsity teams to club status in order to comply with a university-wide directive aimed at decreasing its budget. The demotion eliminated funding for men's golf, men's water polo, women's gymnastics and women's volleyball. A TITLE IX discrimination suit was filed by members of the eliminated women's teams.

Plaintiffs alleged that, at the time of the demotions, the men students at Brown already enjoyed the benefits of a disproportionately large share of both the university resources allocated to athletics and the intercollegiate participation opportunities afforded to student athletes. Thus, plaintiffs contended, what appeared to be the even-handed demotions of two men's and two women's teams, in fact, perpetuated Brown's discriminatory treatment of women in the administration of its intercollegiate athletics program.

The district court found that, in 1993-94, there were 897 students participating in intercollegiate varsity athletics, of which 61.87% (555) were men and 38.13% (342) were women. During the same period, Brown's undergraduate enrollment comprised 5,722 students, of which 48.86% (2,796) were men and 51.14% (2,926) were women. Brown's intercollegiate athletics program consisted of 32 teams, 16 men's teams and 16 women's teams. In 1993-94, then, Brown's varsity program -- including both university- and donor-funded sports -- afforded over 200 more positions for men than for women. Accordingly, the district court found that Brown maintained a 13.01% disparity between female participation in intercollegiate athletics and female student enrollment and that "[a]lthough the number of varsity sports offered to men and women are equal, the selection of sports offered to each gender generates far more individual positions for male athletes than for female athletes,"

Thus, the district court held that the "participation opportunities" offered by an institution are measured by counting the actual participants on intercollegiate teams. Brown University was found to be not in compliance with part one of the "three part test."

The district court also summarized the history of athletics at Brown, finding that, while nearly all of the men's varsity teams were established before 1927, virtually all of the women's varsity teams were created between 1971 and 1977, after Brown's merger with Pembroke College. The only women's varsity team created after this period was winter track, in 1982. While acknowledging that Brown "has an impressive history of program expansion," the district court found that Brown failed to demonstrate that it has "maintained a continuing practice of intercollegiate program expansion for women, the underrepresented sex."

As to prong three (the third part of the "three part test" for compliance), the district court found that Brown had not "fully and effectively accommodated the interest and ability of the underrepresented sex 'to the extent necessary to provide equal opportunity in the selection of sports and levels of competition available to members of both sexes.'"

Editor's comment: In the Cohen v. Brown University case, the court focused on statistical numerical equality. Brown University was widely held as a model of TITLE IX compliance by virtue of the fact that there were essentially equal numbers of mens and womens teams, established in the decade of the 1970's as a result of TITLE IX legislation. Unfortunately, more male athletes participated on these teams than female. The court held that, despite equal numbers of teams, Brown could not show statistical equivalence in the actual number of male vs female athletes, and thus failed part one of the three part test.

The court noted that Brown had made impressive gains in adding women's sports in the 1970's. However, the court did not think this was enough to satisfy the requirement that the school show "continuing practice of program expansion" for women's sports. While women's programs were remarkably expanded in the decade of the 1970's, insufficient further expansion was apparant in subsequent years. In other words, the womens program must be continually expanded -- but to what endpoint? The implication is clear: It is not enough for a school to simply expand womens programs. Rather, the school is required to continually expand women's programs to some end point -- which can only be numerical equivalence in number of sports AND number of participants. The court ruled that Brown was not in compliance with part two of the three part test.

Furthermore, the court ruled that Brown also failed to comply with part three of the three part test. (the interests and abilities of the members of that sex have been fully and effectively accommodated...). The simple fact that a complaint is filed by members of the under represented sex is evidence that their interests are not being fully accomodated.

Brown University filed an appeal to the U.S. Supreme Court: the Supreme Court refused to hear the case, thus affirming the lower court's decision

The reader may browse the above cited pages and and draw his/her own conclusion as to how much emphasis is being put on the "numbers game."

• The TITLE IX ACT itself, or
• The regulations from the Department of Education implementing TITLE IX
• The actions of the Courts in TITLE IX related litigation
• The decisions of College Administrators who may simply wish to eliminate non-revenue sports

Is it time to re-think the "proportionality" test in light of the changing landscape of scholastic and collegiate athletics? Certainly, great strides have been made in gender-equal opportunity since 1972. Has the cure become worse than the disease?

WV-Mat is open to viewpoints from all sides of the issue.. Email comments to wvmat@outlook.com

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