REVERSING FIELD: EXAMINING COMMERCIALIZATION, LABOR, GENDER, AND RACE IN 21ST CENTURY SPORTS LAW

Title IX Backlash and Intercollegiate Athletics

Title IX Backlash and Intercollegiate Athletics Barbara Osborne* I. Introduction T itle IX of the Education Amendments of 1972 is civil rights legislation that is intended to prevent discrimination on the basis of sex in educational institutions that receive federal funding.1 The legislation has been very successful—boys and girls have equal access to all courses in the curriculum in elementary and secondary education, women comprise over half of the undergraduate student population, and there are more female doctors and lawyers than ever before.2 However, Title IX is most often associated with the tremendous gains relative to female participation in athletics. Girls’ participation in high school athletics exceeded the three million mark for the first time, with 3,057,266 girls participating in 2007–2008, an increase of more than 1,000 percent from fewer than 300,000 girls participating in 1972.3 The number of college women competing in intercollegiate athletics is also at an all-time high, growing from less than 32,000 in 1972 to over 170,000 in 2006.4 Although the fantastic growth in opportunities for girls and women to participate in sports is something to celebrate, the athletics arena has many areas to improve before the gender equity mandated by Title IX can be achieved. Participation growth has slowed perceptibly, and resources for women’s athletics programs are significantly less than those for men’s programs.5 Leadership opportunities for women employed in college athletics continue to decline at the Division I level, and pay for female coaches, as well as coaches of women’s teams, is well below that of their male peers.6 Another area of concern is the increased incidence of sexual harassment and increasing acts of violence against women by male athletes.7 Sexism is alive and well in the United States and is particularly apparent in sports. Men have always been entitled to play, and somehow women’s participation is perceived to threaten or diminish men’s participation. Female athletes face many obstacles never considered or encountered by their 217 Title IX Backlash and Intercollegiate Athletics male peers. Some of these obstacles are consciously created as barriers to participation, but more often it is unconscious discrimination in the form of implicit attitudes. This chapter focuses on the battle regarding participation opportunities for female athletes. A brief review of the statute, the 1975 Regulations, and the 1979 Policy Interpretation first provide a foundation. Then, the major arguments presented by critics of Title IX, as well as the most serious administrative and legal threats limiting Title IX, are identified and discussed. In conclusion, recommendations to keep Title IX protections for girls and women in sports are made. II. Title IX Basics Title IX simply states, “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 . . . ”8 The law applies to all educational institutions that receive federal funding and applies to every program within the institution.9 Although Title IX became effective as law in 1972, it wasn’t until the Department of Health, Education, and Welfare (now the U.S. Department of Education) promulgated regulations in 1975 that colleges and universities had notice as to what would be required to comply with the law. The 1975 Regulations focus on equity in two areas: athletic scholarships and any interscholastic, intercollegiate, club, or intramural athletic activities.10 The athletic scholarships provision requires that reasonable opportunities for members of each sex exist in proportion to the number of students of each sex participating in intercollegiate athletics.11 Whether equal opportunity is provided is determined by considering the following factors: (1) whether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes; (2) the provision of equipment and supplies; (3) scheduling of games and practice time; (4) travel and per diem allowance; (5) opportunity to receive coaching and academic tutoring; (6) assignment and compensation of coaches and tutors; (7) provision of locker rooms, practice and competitive facilities; (8) provision of medical and training facilities and services; 218 Barbara Osborne (9) provision of housing, dining facilities, and services; and (10) publicity.12 The Regulations state that funding does not have to be equal for male and female teams in order to comply with the legislation, but...