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'Getting in the Game'

'Getting in the Game'
January 28, 2011

Nearly four decades after its passage, Title IX remains the object of much contention in academe and beyond -- particularly in the courts. Indeed, just a few weeks ago, Delaware State University (which had intended to replace its women's equestrian team with a competitive cheer squad) became the latest of many institutions to see plans changed by a suit filed under Title IX.

In her new book, Getting in the Game: Title IX and the Women's Sports Revolution (New York University Press), Deborah L. Brake looks at the law's history, its outcomes over the years, and the immense strides in women's athletics that followed in its wake, evaluating Title IX's successes as a literal game-changer -- as well as the ways in which it has allowed progress to stagnate or even recede. Brake, a professor of law at the University of Pittsburgh School of Law, answered e-mailed questions about her book and the ongoing controversies it covers.

Q: You call Title IX "a law that is little understood." What are some of the most common misconceptions about it?

A: I am amazed at how many generally well-informed people (including some sports reporters) refer to Title IX as a law that requires equal funding for men’s and women’s sports. In reality, equal funding was never on the table when the details of the law were being hashed out, and there are still huge disparities in male and female athletic budgets. In fact, the Title IX regulations specifically say that inequalities in funding do not violate the law, although they may be relevant to assessing what Title IX does require: athletic opportunities that are qualitatively equal. This standard, known as the "equal treatment" requirement, is difficult to assess and is not always fully enforced in practice; but equality of funding was never the yardstick for compliance.

By far the most problematic misconception is that Title IX is a "quota" law that forces schools to cut men's sports. The reality is that sports themselves set quotas on the numbers of participants, at least at the competitive, varsity level. Title IX's task was to find a measure of equality to apply in this unique setting, which has a sex-separate opportunity structure and provides a limited number of opportunities to each gender. Title IX’s three-part test for equal participation opportunities is a creative and largely effective way to make sure these opportunities don’t get too far out of balance. If a school’s athletic opportunities for women are not substantially proportionate to women’s share of enrollment, the school must either demonstrate a continuing history of adding athletic opportunities for women, or make sure that the present program already fully and effectively accommodates their female students’ athletic interests and abilities. (The test applies equally to men if they are the underrepresented sex, compared to their enrollment, in the school’s sports programs — a rarity not yet seen in the cases.) Like other nondiscrimination laws, that standard can either be met by adding opportunities for the underrepresented group (the preferred route) or taking them away from the advantaged group. Title IX does not force a choice either way, neither setting up quotas nor forcing cuts to men’s teams. (More on this below.)

Q: There are aspects of Title IX, you write, in which "progress has been disappointing," or "the law has developed in a constricted or ineffectual way." What are some examples of this?

A: Even though financial disparities in men’s and women athletic expenditures do not establish a per se violation of the law, no one can doubt that the vastly different sums spent on men’s and women’s sports are buying a very different athletic experience. Title IX’s amorphous equal treatment standard has not put the brakes on the out-of-control spending on men’s sports. Many defenders of the status quo justify this by pointing to revenue production, but any rigorous accounting would show that even the most lucrative programs are often in the red once all real expenses are accounted for. And it is hard to see how some of the most lavish expenses are related to revenue anyway, except in the most indirect “everyone does it” kind of way. The fact that sports are supposed to be educational activities often gets lost in debates over Title IX enforcement. Title IX has not succeeded in breaking down the big business model of college sports, but perhaps it is too much to hope that any law could put that set of worms back in the can.

Title IX’s treatment of sexual harassment has also been disappointing. Through a pair of Supreme Court decisions, Title IX was interpreted to set a very lenient standard of protection for students, including athletes, from sexual harassment and abuse — one that is much less protective than what federal sex discrimination law provides employees in the workforce. Even though most coaches are dedicated professionals who act on the best interest of their athletes, sexual harassment by coaches is a big problem in women’s sports. And yet the legal standard, which requires actual notice and deliberate indifference, creates terrible incentives for schools to ignore the problem, discourage reporting, and keep their heads in the sand. Some court decisions in recent years have nevertheless held schools accountable for a coach’s sexual abuse despite the difficulty of this legal standard, which has put pressure on schools to be more proactive in this area. But the law has been much less helpful than it might have been in this effort.

Finally, as Title IX has raised the profile and status of women's sports, and as formerly separate men’s and women’s athletic departments merged into a single structure (typically led by a male athletic director), more men have taken jobs coaching women’s sports. Unlike Title IX’s gender-conscious standard for measuring discrimination in student-athlete participation opportunities, Title IX takes a gender-blind approach to employment. As long as the hiring process is not demonstrably sex-based, Title IX does not view it as discrimination if women are not hired as coaches. With women holding less than half of the jobs coaching female athletes, and only 2 percent of the jobs coaching men, female athletes see a predominantly male leadership structure in sports, which shapes their sport experiences and their impressions of career possibilities in sports.

Q: Much of the book's fourth chapter is devoted to cheerleading; whether or not it should count as a sport, for the purpose of Title IX compliance, has been the topic of continuing debate. What is your position on this, and why?

A: I don’t think there is an easy yes or no answer to this question. Answering yes without critical analysis risks reinforcing women’s place on the sidelines in sport, with cheerleading being used to gain quick compliance and avoid the addition of sports in which women have been historically underrepresented, a core goal of Title IX. And yet, categorically barring cheerleading from sport status smacks of paternalism and discounts women’s choices, not to mention ignoring the high level of athletic skill cheerleading requires. I think this is one of the areas where Title IX gets it right, taking a pragmatic case-by-case look to see if the activity functions as a sport, with a primary purpose of competition. Where cheerleading is denied sport status, as in the recent Quinnipiac case (the most recent decision in this case was issued after this book was published), it is because it is not structured to provide the kinds of athletic experience other sports are providing. For example, at Quinnipiac, the schedule for cheerleading was wildly different from that of other varsity sports, with the team being reduced to playing non-collegiate and even high school teams, and even the standards for competition varied wildly from match to match. If cheerleading is to count as a sport for Title IX purposes, it has to function as a sport. If it does, I have no problem counting it as such under Title IX, although it will look like a very different activity than it has traditionally (some have suggested it should have a new name to signal this change).

Q: What role should Title IX play in getting more women into contact sports -- and is it clear that doing so would be a good thing?

A: Title IX has had a somewhat limited impact on women’s entry into contact sports, for a couple of reasons. Most significantly, Title IX’s contact sports exception blocks women from the right to try out for men’s teams in sports not offered to women if the sport in question is a contact sport. This has kept women from acquiring interest and skills in these sports, and deprived girls of potential role models. As the book explains, try-out rights have been much more expansive under the Constitution’s equal protection clause, even in contact sports like football and wrestling. But private schools (even those that receive federal funds, and hence are covered by Title IX) still do not have to allow women access to men’s contact sports (because they are not bound by the Constitution’s equal protection clause). And, more importantly, the very existence of the contact sports exception sends the message that women are not fit for such sports. Nor is Title IX terribly helpful in getting women their own teams in contact sports. Title IX is agnostic about which sports are added for women, as long as schools provide equal participation opportunities. In order to require a school to add a team for women in a sport that is offered only to men, the law requires women to prove that they already have enough interest and ability to field a competitive team, and that the new team would have a reasonable expectation of competition. Especially in contact sports not traditionally played by women, this creates a chicken and egg problem. Despite these legal hurdles, the book does identify some successes in recent years in getting women into contact sports.

Yes, I do think it would be a good thing to broaden sports opportunities to women, including in contact sports and other nontraditional sports. Doing so would not only expand the range of women’s access to sports, and shape their athletic interests along the way, it would also help to break down the gender binary in which sports themselves are gender-typed as more suitable either for men or women. The gendering of sports hinders the ability of both women and men to find and act upon their authentic interests in sports.

Q: "Women of color remain significantly underrepresented in intercollegiate athletic participation." Why is this the case, and how might it be remedied?

A: There is no doubt that women of color have benefited from Title IX, as evidenced by their huge increases in participation opportunities and athletic scholarship dollars (documented in the book). But they remain under-represented in girls’ and women’s sports, and the women’s sports that have seen the biggest gains in the post-Title IX era are sports with very little participation by women of color. Getting at the root of this problem is very difficult — it has less to do with Title IX and more to do with the deeply embedded racial stratification that is a core feature of our Nation’s educational system. It is also a product of the increasing competitiveness of college sports, requiring early sport experiences at younger ages in order to be competitive in high school or college. Budget crunches and pressures to raise test scores have caused elementary and secondary schools to drop physical education and scale back their sports programs. These developments have fallen more harshly on lower income students and students in urban areas. These families have less time and fewer resources to get their children into private and community-based sports leagues. There is no simple solution to the resulting disparities, and the male vs. female comparison of Title IX — especially as applied to urban schools with limited sports programs even for boys — does not begin to get at this problem. Ensuring access to sports for all girls will require a much broader strategy of educational and athletic equity, including reinvigorating physical education programs in all schools, exploring private/public partnerships that broaden free community sports programs, and rededicating our national commitment to racially integrated schools. This is difficult work and there is no easy shortcut in sight.

Q: One chapter of the book is devoted to "leveling down," in which institutions cut men's sports rather than adding women's sports to comply with Title IX. What can the law do "to make sure that leveling down is not used as a strategy for deterring women from challenging discrimination" -- and how can its critics be persuaded that Title IX isn't at fault for the practice?

A: It is very hard to counter such “leveling down” actions because they are endemic to discrimination law as a whole; they are not unique to Title IX. The book tries to put this issue in context, since Title IX has been vilified for allegedly forcing schools to cut men’s sports without any attention to the broader problem of leveling down. Taking away from the advantaged group has often been a reaction to equality claims, including in the historic Palmer v. Thompson case (decided in 1971), in which the Supreme Court permitted the city of Jackson, Mississippi, to close its municipal swimming pools in response to a lawsuit challenging the city’s racial segregation of the pools. The book identifies other cases and legal contexts as well in which leveling down has been a strategy to preserve the message and status relationships of the challenged discrimination, while formally discontinuing the discrimination that prompted the legal challenge. As the book explains, cutting men’s sports to comply with Title IX is a classic leveling down strategy. Like other discrimination laws, Title IX does not require this response, but it does permit it. The book argues for reconsidering discrimination law’s laissez faire approach to leveling down to make sure that it does not send a message of second class citizenship. It argues that discrimination law as a whole should take a more critical look at leveling down. But it is important to understand that this is not just a problem under Title IX; it is a problem with discrimination law and equality rights more broadly.

Q: The last few years have seen the election of a president who has expressed strong support for Title IX; a great deal of upheaval in Congress; and a lingering economic crisis that, as you note, "is sure to influence Title IX compliance choices." How have these factors played out thus far?

A: One notable success since the book was published is that the Obama Administration (as predicted in the book) rescinded the troubling 2005 Office for Civil Rights policy guidance that made it easier for schools to comply with prong three of the three-part test for participation opportunities through the use of survey evidence, even by counting students’ non-response to email surveys as a lack of interest. This Administration’s repudiation of the controversial OCR guidance was the predictable dénouement of the controversy that has dogged the 2005 guidance since its inception, and it should help prevent the watering down of compliance standards that the guidance threatened. In addition, the signals coming out of OCR suggest a renewed interest in enforcing Title IX, which had slowed to a snail’s pace under the Bush Administration. It will be interesting to see how the agency handles the recent complaints brought by the National Women’s Law Center targeting unequal participation in high school sports programs. Most Title IX enforcement to date has focused on the college level, but by that time, progress comes too late for most girls to benefit.

As far as how the economic downturn will affect Title IX compliance, it is still too soon to say. Certainly some schools will use the economy as the excuse to cut men’s sports rather than expanding women’s programs, as others have done before (while blaming Title IX). The better response would be to rein in expenditures on elite sports while broadening participation for all, even if it means dropping down a division, while returning the educational focus to college sports. Only a crystal ball could tell how many schools will follow this braver path.

 

 

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