By Cari A. Stern, Chapman and Cutler LLP
Introduction
Societal expectations about appropriate feminine roles, as well as numerous legal impediments, curtailed women’s active participation in sports until relatively recent times. During the late nineteenth century and early twentieth century, the dominant societal perspective dictated that women should remain graceful rather than assertive, and should never be seen sweating. For those women that did engage in sports, the majority engaged in the “traditional women’s sports” such as tennis, golf and swimming, which permitted women to maintain their stereotypically feminine values. These societal attitudes, which labeled women as “fragile” and “inferior”, spilled over to the legal arena. Not only were women prohibited from owning land during the early years of America, but also, they were not entitled to vote until 1920. Due to these social and legal obstacles that restricted women’s opportunities in many facets of life, men have traditionally dominated sport.
Before the 1970s, women comprised only 7% of the total number of high school athlete participants and 16% of the total number of college athlete participants. Those collegiate sport programs that did exist operated on shoestring budgets, volunteer coaches and uniforms and equipment provided by participants. It was not uncommon for female athletes to travel to games via their own personal cars and stay multiple girls in a hotel room, whereas their male counterparts enjoyed the fruits of larger budgets. However, the athletic opportunities available to women forever changed in 1972, with the passage of Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-1688 (“Title IX”).
Title IX was a significant milestone for female athletes, in that it prohibited discrimination on the basis of sex in any program or activity that received federal financial aid. The statute states, in pertinent part that, “[n]o 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.” 20 U.S.C. §1681(a). Title IX’s two purposes include: (i) denying federal financial assistance to institutions or programs that discriminate and (ii) protecting students from such discrimination.
Congress authorized the Department of Education (“DED”) to enforce the Act and to promulgate regulations dictating how Title IX applies to athletic programs. DED’s Office of Civil Rights (“OCR”) has assumed primary responsibility for the Title IX’s enforcement. As part of its enforcement activities, OCR makes random compliance reviews of covered institutions and also investigates complaints submitted by individuals. After an investigation, if the OCR finds that an institution has been non-compliant, it may turn its findings over to federal or local authorities for prosecution. DED may also suspend or terminate the institution’s federal funding after a hearing before an administrative law judge. Additionally, discriminated individuals may also sue an institution directly, without relying on DED’s enforcement methods.
Out of all of the legal theories available to discriminated athletes, Title IX is the most prevalently used. It is also the most widely criticized. While the Act has led to the growth in female athletic opportunities since the 1970s, it has also led to a decrease in male athletic opportunities, spurring the criticism of many male wrestlers and swimmers (who have been victims of Title IX funding cuts). This article will explore how institutions’ compliance with Title IX’s “equitable participation” mandate has changed from the landmark decision of Cohen v. Brown to a recent federal court’s ruling in Biediger v. Quinnipiac University. Finally, this article will address the foreseeable future of Title IX and gender equity in sports.
Equitable Participation
Title IX mandates gender equity participation at any institution that receives federal funds. While Title IX directs that both genders have “equitable opportunities” to participate in collegiate and high school sports, this requirement does not mean schools must offer identical opportunities or identical numbers of athletic participation opportunities. In order to meet the equitable opportunity burden, DED’s regulations list one specific factor that OCR will consider in assessing participation compliance: whether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes. In order to satisfy this item, OCR’s Policy Interpretation mandates that a school must demonstrate it satisfies one of the following three prongs:
(i) Intercollegiate competitive opportunities are provided in numbers substantially proportionate to the respective enrollment of each gender;
(ii) The institution has a history and continuing practice of program expansion that is responsive to the interests and abilities of the underrepresented gender; or
(iii) The abilities and interests of the underrepresented gender have been fully accommodated in the present athletics program.
44 Fed. Reg. 71,418; Clarification of Intercollegiate Athletics Policy Guidance:
the Three-Part Test, Dear Colleague Letter, published by the Office for Civil Rights (Jan. 16, 1996).
Fourteen years following the issuance of the Policy Interpretation, it was still unclear how a school could be in compliance with one of the three prongs. All of this changed in 1993, when the First Circuit set forth the framework to be applied in athletic participation cases. Ironically, it was Brown University – a member of the Ivy League – where intercollegiate athletics first began in the 1850s – and where the most monumental gender discrimination case in intercollegiate athletics emerged.
Cohen v. Brown University, 991 F.2d 888 (1st Cir. 1993) (“Cohen”)
In the spring of 1991, Brown University found itself in a financial bind. In an effort to reduce costs, it cut four varsity teams: women’s gymnastics and volleyball and men’s golf and water polo. Subsequently, Brown’s women’s gymnastics and volleyball players filed a class action lawsuit in federal district court, alleging that Brown’s cutting of their teams created a failure to provide women with “equivalent opportunities to participate in intercollegiate athletics”, in violation of Title IX. The district court found that Brown had failed to satisfy either of the three OCR prongs set forth in its Policy Interpretation and the Fourth Circuit affirmed. Brown had argued it was in compliance with the third prong by merely accommodating those interested in participating in athletics. However, as the First Circuit noted in its opinion, the third prong demands not merely some accommodation, but full and effective accommodation; if there is sufficient interest and ability among members of the underrepresented gender, which is not fully and effectively accommodated by offered varsity sports, then a school has failed the third prong. Brown, the First Circuit held, provided no evidence supporting how women’s interests and abilities were still fully accommodated after women’s gymnastics and volleyball were cut.
Finally, nearly six years after the lawsuit was originally filed, and long after Amy Cohen and many of her fellow plaintiffs had graduated, a settlement was reached among all parties: Brown agreed to increase its opportunities for women without cutting men’s programs, and in particular, had to maintain a female athletic participation rate within 3.5 percentage points of women’s undergraduate enrollment.
Brown’s route to compliance has not been the norm for many schools. In order to satisfy one of the three prongs, a school may add a women’s team or demote or eliminate the requisite number of men’s teams, or it may implement a combination of these remedies. However, many schools have not had the funds, like Brown, to add women’s programs while maintaining the current men’s programs, and thus, such schools have eliminated certain men’s teams. Men’s wrestling, gymnastics, swimming and baseball teams are usually the teams negatively impacted by schools’ cost-reductions, and in some instances have led to Title IX claims by male athletes alleging reverse discrimination; most of these claims have proven to be unsuccessful. See, e.g., Neal v. Board of Trustees, 198 F.3d 763 (9th Cir. 1999); Kelley v. Board of Trustees, University of Illinois, 35 F.3d 265 (7th Cir. 1995).
Following Cohen, it was thought that academic institutions would have the burden of proving they are in compliance with prong three. However, in 2005, OCR issued its Additional Clarification of Intercollegiate Athletics Policy: Three-Part Test Part Three (“Additional Clarification”), and a User’s Guide to Student Interest Surveys Under Title IX (“User’s Guide”), which have resulted in a compliance loophole for institutions. Pursuant to the Additional Clarification, the complainant (OCR, in the case of an OCR investigation or compliance review, or students, in the case of a complaint filed with the institution under its Title IX grievance procedures) has the burden of proof to show by a preponderance of evidence that there exists a sport for the underrepresented sex for which all three of the following conditions are satisfied: “(1) unmet interest sufficient to sustain a varsity team in the sport; (2) sufficient ability to sustain an intercollegiate team in the sport; and (3) reasonable expectation of intercollegiate competition for a team in the sport within the school’s normal competitive region.” Office for Civil Rights, March 17, 2005, Additional Clarification of Intercollegiate Athletics Policy: Three-Part Test ¯ Part Three, http://www.ed.gov/about/offices/list/ocr/docs/title9guidanceadditional.html (last visited Mar. 10, 2013).
Additionally, the User’s Guide attached to the Additional Clarification provides a web-based survey (the “Model Survey”), which OCR advocates using as a way of measuring female interest in sports at the institution. When an institution drafts a well-written survey and ensures it is distributed to a sufficient target population, the survey results will create a presumption of compliance with part three of the three-part test. The presumption of compliance could then only be overcome if the three conditions listed in the prior paragraph are satisfied.
Critics of the Additional Clarification have argued that the Additional Clarification clarifies nothing, and together, with the Model Survey, creates a compliance ambiguity. First, from an equity standpoint, male athletes have never been required to prove interest in order to receive participation opportunities. Second, some experts in survey methodology have found that they can be an unreliable measure of interest in participation. For example, typically only twenty percent of persons who receive a survey respond to it; nonetheless, the Additional Clarification mandates that a non-response to the survey indicates a lack of interest in sports. It is questionable whether this portion of the Additional Clarification will be upheld by the courts. But for now, it is clear that since Cohen, it has become much easier for schools to satisfy prong three, which contravenes the First Circuit’s ruling in Cohen.
Biediger v. Quinnipiac University, 691 F.3d 85 (2nd Cir. 2012) (“Biedeger”)
In 2009, Quinnipiac University announced its plans to eliminate varsity sports teams for women’s volleyball, men’s golf, and men’s outdoor track and field, while creating a new varsity sports team for women’s competitive cheerleading. Plaintiffs, five women’s volleyball players and their coach, immediately brought suit under Title IX claiming that none of the OCR prongs were satisfied. Quinnipiac, relying on prong one, counted its cheerleading squad as a “sport” and argued that the roughly 62% of athletic opportunities offered to women athletes were substantially proportionate to the 62% overall female student body.
The federal district court issued an injunction prohibiting the school from following through with its plans, finding that it systematically and artificially increased women’s teams’ rosters and decreased men’s teams’ rosters to achieve the appearance of Title IX compliance. The court also held that competitive cheerleading was not a sport, and thus, the number of female cheerleaders could not be counted in Qunnipiac’s prong one compliance calculation. The Second Circuit affirmed. In its decision, it noted that a 3.62% disparity between female enrollment and female varsity athletes is substantial enough to violate prong one. And since Quinnipiac was unable to satisfy prong two or prong three, ultimately, Quinnipiac had run afoul of Title IX.
Biedinger is significant in Title IX jurisprudence for a few reasons. First, the case, which was decided nearly 40 years after Title IX was originally passed, is one of the only cases to address whether competitive cheerleading counts as a sport for purposes of prong one compliance. It will be interesting to see how schools like Dartmouth and Maryland- two schools that have historically counted cheerleading as a sport for its Title IX compliance- will continue to distribute its funding towards cheerleading squads. It is questionable whether many schools’ cheerleading squads may be in future jeopardy of being cut. Moreover, Biedinger also sets forth a precedent whereby it is more difficult for schools to meet prong one compliance. If a 3% disparity between enrollment and participation rates creates a presumption of sex discrimination, then schools will need to be extremely careful in their statistical proportionate analyses.
Conclusion
While Title IX has been very effective, especially with regard to increasing access to athletic opportunities for girls and women, gender equity is still a work in process. In the wake of the Cohen and Biedinger decisions, ambiguity, confusion and frustration exists over OCR’s three-prong Policy Interpretation (and in particular, prongs one and three). In particular, it remains to be seen is whether schools will circumvent the law under the new prong three loophole or instead, continue the controversial practice of cutting men’s teams and adding women’s teams in order to satisfy prong one.
Opponents of Title IX argue the law is outdated and no longer necessarily. These individuals argue that female participation is up and the discrepancy between male and female participation rates is due to divergent interests. They also cite the large elimination in male sports as the downfall of the Act. Some argue that since male sports like football traditionally generate the most revenue for schools, it is equitable for male athletes to be provided with more participation opportunities; others argue that football should not count for Title IX compliance because of its revenue generation and and/or its cultural elements.
Proponents of Title IX counter that the Act is not to blame for the elimination of male teams, but rather, the blame should be placed on football and basketball programs that typically pose the most strain on athletic institutions’ budgets. In particular, football rosters are substantially larger than any other team (rosters sometimes can consist of 85 scholarship players and 40-50 non-scholarship players). These individuals also argue opponents of Title IX have flawed reasoning since the potential to earn revenue should not justify a moral injustice.
Title IX has never enjoyed a peaceful existence. And the discord surrounding the law most likely will not end soon. Gender equity in collegiate and high school athletic participation has come a long way in the past forty years, but there is still much work to be done. Sports teach athletes and fans the importance of dedication, cooperation and hard work. Women are disadvantaged when they cannot participate since their absence perpetuates the view that they are powerless in cultivating these qualities. Women, like men, need to see equitable athletic opportunities in the next forty years.
