It is easy to forget that after the Education Amendments of 1972 became law, it was initially unclear whether Title IX of those amendments -- which prohibited gender discrimination in any education program receiving federal funds -- would even apply to college sports. Prior to the bill's passage, most of the congressional debate focused on gender issues within admissions and academics. But in the years since 1972, Title IX has taken on a political life of its own, and that life has centered almost completely on college athletics. Immediately after the law's passage in the early 1970s, the National Collegiate Athletic Association (NCAA) and some college athletic directors mounted a campaign to try to prevent the new law from applying to sports. They feared that the measure would force the NCAA to cede some of its control over college athletics to the federal government. Moreover, they worried that it would compel schools with strong football and men's basketball teams -- the twin commercial giants of college sports -- to divert funds from their most prominent programs. And so they set out to exempt all of college athletics -- or, failing that, at least football -- from the regulations that Title IX portended.
These efforts failed, and it has been, on balance, a good thing for the world of college sports that they did. But Title IX's enforcement has not been perfect, nor has it had solely positive consequences. So the idea of tweaking the law's enforcement -- which U.S. Secretary of Education Roderick Paige last year set up a commission to do -- was not outlandish. The commission, which voted on its final recommendations several weeks ago and will soon present its final report, did indeed get some things right. But it also got some wrong. And its less successful efforts to address the complaints of Title IX critics suggest that it is schools themselves -- rather than the federal government -- that are best positioned to resolve the tensions that the pursuit of gender equity has created in the world of college sports.
As currently enforced, Title IX has led to some notable successes. Following passage of the law, schools that were spending less than 1 percent of their athletic budget on women had to start distributing things more equally. As a direct result of Title IX, the number of female college athletes increased fivefold between 1971 and 2002, while the number of high-school girls playing sports jumped from less than 300,000 to nearly 2.8 million.
The force behind these changes -- and the source of never-ending controversy in the years during which they took place -- was the "three-prong" test set forth in a 1979 policy interpretation by the Department of Health, Education and Welfare (the precursor to today's Department of Education). The test offers three ways for athletic departments to comply with Title IX: maintain a ratio of male-to-female athletes that is "substantially proportionate" to the male-female ratio of the undergraduate student body, show a history and continuing practice of expanding opportunities for women athletes, or demonstrate full and effective accommodation of the athletic interests and abilities of women. Schools can comply with Title IX by meeting any one of these three tests. However, because the second two measures are so vague, the first test -- which is also the most controversial because, its detractors argue, it establishes gender quotas -- has, in most cases, become the de facto yardstick for measuring compliance with Title IX.
Title IX has not solved all problems with regard to women in sports -- and it has created problems as well. Women make up 56 percent of undergraduates in America but receive less than half of all athletic scholarship money and participation opportunities. At the same time, colleges have cut about 400 men's teams in the past decade -- many in an attempt to comply with Title IX regulations. Those teams have often been wrestling squads, which is why the National Wrestling Coaches Association last year filed a lawsuit challenging federal enforcement of Title IX. And that in turn is what led Paige to set up a commission to revisit how the law is enforced.
Among the commission's more prudent suggestions was a recommendation that schools be allowed to use surveys to determine interest among female students in joining varsity sports teams. This marks one of the first times that the Education Department has tried to clarify the neglected third prong of the 1979 policy interpretation -- and represents a much-needed change that could pave the way for putting all three prongs of the test on equal ground. Some may argue that it's unfair for women to have to prove their interest in competing in college sports. The same regulations that created the proportionality test, however, also allowed schools to comply by accommodating the "interests" of female students. But schools have never been given a means for gauging how much of that interest exists; the surveys would fill this need.
Yet despite this reasonable recommendation, other aspects of the commission's report seem difficult to apply -- and might only further cloud the murky waters of the Title IX debate. For instance, the commission recommended that unrecruited walk-ons not be counted when determining the male-female ratio of the athletics program. The NCAA's member schools are broken up into three different levels: Division I, Division II and Division III. While the vast majority of athletes at Division I schools -- those most likely to have big-time athletic programs -- are either on some form of scholarship or "recruited" walk-ons, Division III schools do not offer any form of athletic scholarship. How would this rule be applied to a team where each player is technically a walk-on? Would those athletes who contacted the coach before being admitted to school be counted? Or perhaps only those the coach sought out? Would this allow a Division III football team to have more than 90 players but have only those 50 who were recruited count toward the proportionality ratio?
Another recommended change would permit schools to count a fixed number of roster spots for each sport when determining compliance with the proportionality standard instead of counting the actual number of male and female athletes on each team. Commission co-Chairman Ted Leland, the athletic director at Stanford University, argued that this would prevent schools from having "100 women on the rowing team" to increase the proportion of females within the athletic program.
But in trying to fix this problem, the commission would leave room for unscrupulous schools to decrease opportunities for female athletes. Suppose a college has a 50-50 male-female ratio among its undergraduate student body. Under the current interpretation of the proportionality test, this school would be required to have about the same ratio of male and female athletes within its athletics program. If this school had 110 men on its football team, it would be required in theory to have 110 female athletes on other teams to balance things out. If only a fixed number of players on a football team are counted toward the proportionality standard -- for the sake of argument, let's say 95 -- this school would only need to provide 95 spots for female athletes. Furthermore, it may be possible to overinflate the number of female athletes. Suppose that a women's rowing team had spots available for 35 athletes. If, in reality, the given school only had 30 women rowers, it could still pretend it had 35 when doing its Title IX compliance calculations. So under this proposal, our hypothetical school has 15 male athletes who aren't counted in gender-discrimination calculations -- and an imaginary five women who are.
In addition, few of the recommendations from the commission would do much to address the problems that have led wrestlers -- and participants in other overlooked men's sports -- to blame Title IX for loss of their programs. The truth is that the best solution to this problem does not lie with a government commission but with the NCAA itself. In order to increase opportunities for smaller men's programs and women's teams, the NCAA must get involved to cut the lavish spending of its member schools on football and men's basketball. Division I football teams are currently allowed to use 85 full scholarships for football teams. If this number were cut to 65 or 70 -- a measure only the NCAA can enact -- the reduction would free up enough scholarships for a school to reinstate a men's wrestling program and add scholarships to a women's program.
Title IX is often cited as an example of how government can spur social change. But as many of the law's conservative detractors would no doubt agree -- and as the commission's report, ironically, proves -- government can't solve everything. Even the group's most sensible recommendations won't guarantee that smaller men's programs are protected. It's up to colleges to do that themselves.
David Mordkoff covers sports for The Associated Press.
