Title IX Returns to Courthouse

Terry Crawford, former Olympic coach, coach of national champions, champion of men and women, and a woman, is having a conversation she would have once thought unfathomable.

Mired in conflict, fearful of change because she doesn’t quite trust the ones making the changes, she’s talking about a law--Title IX--that greatly helped her life and countless other women in sports, and she’s troubled that it’s not doing the same for men.

“I just finished a term as president of the U.S. Track Coaches Assn., and roster management [capping] in men’s teams is a major issue for schools throughout the nation,” said Crawford, the track and field coach for men and women at Cal Poly San Luis Obispo, which, she adds, is not a victim.

“The number of athletes on men and women’s teams is so drastically different, it’s like a flashing neon sign. If a male athlete has an injury or is ineligible, his coach is left in a lurch. On the other hand, schools are adding as many females to the roster as they can almost round up.”

That neon sign, which used to signal blatant inequities for women in sports, now has an arrow under it pointing toward the men, and the courthouse. The latest challenge to reform Title IX is now in the throes of legal maneuvering in the U.S. District Court in the District of Columbia. If successful, this case could dramatically change the way the 30-year-old law--credited with having greatly increased opportunities for girls and women in sports--is enforced.

The defendant, the U.S. Department of Education, which enforces the law that bans sex discrimination in education programs or activities that receive federal funds, has filed for dismissal. The plaintiffs, a group of college coaches, alumni and athletes, have filed a motion for summary judgment. Oral arguments are set for Oct. 2.

The court will hear the plaintiffs, as well as other reformist groups that include men and women, claim the department’s policy enforcing Title IX was unlawfully adopted and allows schools to run their sports programs under a quota system. With the bulging roster of football teams, and the financial restraints of athletic programs, reformists say leftover opportunities for men in minor sports are sparse and teams often are eliminated or capped by schools seeking to achieve the right numbers for compliance.

Core to the complaint is the three-part test, a policy developed in 1979 to help schools determine if they are in compliance, and the 1996 letter of clarification of that test, which the plaintiffs allege further skewed the law by establishing a quota program.

They want the test invalidated.

“We are saying that the [Department of Education] didn’t have the authority to adopt the three-part test in the first place, didn’t adopt the test with the proper procedure and, finally, by not revisiting the policy in light of the changed circumstance between the 1970s and the 1990s, failed as an agency,” says Larry Joseph, attorney with McKenna Long & Aldridge LLP., the Washington firm representing the plaintiffs.

The Department of Justice has asked for dismissal of the complaint based on procedural grounds. A spokesman for the department said it would make no comment about the suit other than what is contained in its filings. In June, the Department of Education, citing the suit and the 30th anniversary of Title IX, created a commission to review the issues surrounding its policy enforcement.

Previous challenges to Title IX--all of which have been denied--have been against schools. This is the first suit brought against the policy maker. “The other suits were focused on a particular instance--a team being cut by a school, or a team being denied--but this is directly challenging the policy interpretation, and it is a much more narrow focus,” said Kim Yuracko, assistant law professor at Northwestern University.

Most of the allegations involving policy in this case have been included, albeit indirectly, in other lawsuits, according to law experts who have reviewed the case. But the allegation that the Department of Education changed the rules without following proper procedure is clearly new.

“It is claimed that the [1979] policy is contrary to statute and the Constitution,” says Thomas Sargentich, law professor at American University College of Law.

“I’m unclear about the likelihood of plaintiffs’ success with these arguments, which aren’t new. I think the most novel thing [about the suit] is the procedural challenge. There are many such challenges in the law generally, and they tend to turn on the court’s view of whether the later interpretation significantly differs if at all from the earlier interpretation.

“In general, if courts are disposed to be critical of agencies, it is often easier for them to take such an approach on the basis of procedural concerns, as they don’t intrude as directly into the substance of policy.”

The test offers three ways to comply with Title IX, but the suit takes issue mostly with the measure using proportionality, i.e., if 60% of the school’s student body are women, then 60% of the school’s athletes should be women. The plaintiffs want compliance to be based on the law’s original regulations--adopted in 1975--which called for equal athletic opportunity for members of both sexes based on interest, not enrollment. The two other ways to comply center on offering opportunities based on the interest of students, but the plaintiffs say they also cause schools to unlawfully favor women.

Yuracko, whose paper on the proportionality policy of Title IX will be published this winter in the Northwestern Law Review, says a method of compliance based solely on the interest of students could prove difficult. “How do you do it--send out a survey?” she asked. “Interest level is completely variable and courts have been reluctant to deal with it. It would depend on who a school decides to admit, the recruiting, and what resources are already there.

“The reason we have these huge dilemmas and we don’t have a good model of what it means not to discriminate is because men and women don’t compete against each other. In the work world, at least it is theoretically clear. Men and women can be measured against the same set of criteria.... We don’t have that when we move to the sex-segregated sports world because we don’t have a single unitary metric along which to compare them.”

Valerie Bonnette worked for the Office of Civil Rights (which enforces Title IX in the Education Department) for 15 years and co-authored the agency’s 1990 Title IX athletics investigator’s manual. Now, as owner of Good Sports Inc., she counsels schools on compliance, and says the interests of students can be measured many ways, including club, physical education and community recreation programs.

“I think if more education administrators understood [interest compliance], they would be less focused on proportionality as the only compliance method,” she says. “ ... I think it would help the men.”

On the whole, school officials are reluctant to talk openly about Title IX compliance, citing its complexity and litigious history. Most do say, however, that compliance is challenging.

“There’s no doubt that Title IX necessitates making some tough and difficult decisions,” says Marcia Saneholtz, senior associate athletic director at Washington State. “But people find ways to accomplish what they value. If [schools] value offering equal opportunities, they will find a way to do it.”

Women’s groups that oppose reform, such as the Women’s Sports Foundation and the National Women’s Law Center, say the purpose of Title IX is to create the same opportunities for female and male athletes, and does not require eliminating men’s teams.

They contend it is the schools’ choice to comply by dropping teams, and believe that schools could easily maintain all sports by spending less on football and basketball and giving each sport a smaller allocation of the athletic budget. These groups cite government statistics and studies that show that, while some men’s sports have been dropped by schools since Title IX, other sports have been added, and men’s participation in college sports has increased overall by 22%.

They claim some sports are dropped for revenue reasons and have nothing to do with Title IX. Regardless, more than 171 collegiate wrestling programs have been cut since 1981, and reformers say track and field has lost more than 91 programs since 1993. One wrestler, Frank Ryan, had the misfortune of attending two schools that cut their wrestling programs, both citing Title IX reasons. His third school cut wrestling also, but after he graduated.

For these athletes, it’s difficult to see the equality. “What I have seen when a program is dropped is that a student has to choose between leaving their friends to transfer to another school, and giving up on their athletic dreams,” says Eric Pearson, chairman of the board of College Sports Council, one of the plaintiffs in the suit.

Despite these hardships for men, women still trail. In 30 years of Title IX, studies show women’s participation in college varsity sports has increased by 403%, but men still receive nearly 28% more opportunities to participate. And though 54% of college students are female, they receive only 36% of the sports operating dollars, 42% of athletic scholarships and 32% of the recruiting budget, according to a 1999-2000 NCAA study.

Proponents fear any reform would weaken the law and turn back the gains. “Title IX has done so much good that I’m very torn right now,” Crawford, the track coach at Cal Poly. “I have some concerns that, in revisiting these interpretations, it has to be handled with kid gloves, not slashed and cut to a point that it has no real power....

“There was a timeliness of good will that it [proportionality] served, but I don’t think the originators of the bill intended it to hurt male athletes.”