Title IX: A Look at a Law Most New Hampshire Officials Support
By Daniel Remin
WASHINGTON — It’s a simple law
But 31 years after President Richard M. Nixon signed it into law, Title IX is mired in controversy.
Both supporters and detractors of the law agree it has succeeded in opening high school and college sports to women, who now join teams in numbers far greater than before.
However, college wrestling coaches and others charge that Title IX has had the reverse effect of discriminating against men by forcing many schools, including the University of New Hampshire, to cut men’s teams. They want the Bush administration to ease enforcement of the law.
In 1997, UNH cut men’s baseball, men’s lacrosse and men’s and women’s golf both in an effort to comply with Title IX and because of budget constraints, according to a UNH athletic administrator.
But the Wildcats’ athletic director, Marty Scarano, who has been at UNH since 2000, said he supports the law.
“I would not have agreed with any rash change that put more leniency in the teeth of Title IX,” he said. “I think Title IX’s been the right thing. I don’t think necessarily it’s been interpreted the right way.”
The debate centers around U.S. Department of Education guidelines for universities attempting to comply with the law and the questions over how it might be changed to make it more equitable.
The legislation prohibits discrimination in all educational programs and departments, but athletics is where Title IX has had the largest and most visible impact and caused the greatest controversy.
Perhaps at no other time since Title IX was enacted in 1972 has it received so much attention than in the past year.
Last year, following complaints by groups of national wrestling coaches, President Bush appointed a commission to review and examine the law. This past February, the Commission on Opportunity in Athletics submitted its findings to Education Secretary Rod Paige. Paige plans to study the report, called “Open to All: Title IX at Thirty,” and could make changes in how the department enforces the law based on the commission’s recommendations.
“The whole purpose of the commission was to look at ways to strengthen opportunities for some athletes and ensure that opportunities for some athletes aren’t being created or taken away at the expense of others,” said Susan Aspey, Education Department spokeswoman.
Nobody on either side disputes statistics that show the sizeable increase in women’s participation in high school and college sports during Title IX’s first three decades. During that time, female participation in sports shot up 847 percent in high school and 400 percent in college. Male participation also increased, although by smaller percentages.
According to the National Federation of State High School Associations, 3.6 million boys participated in high school athletics in 1971-1972, compared to 294,015 girls. Thirty years later, the group reports, 6.76 million boys and 2.8 million girls played high school sports.
In college, according to the National Collegiate Athletic Association, the participation numbers for men have increased from 170,384 in 1971-1972 to 208,866 last year. About 30,000 women played sports in college in 1971-1972, and in 2001-2002, that number increased five-fold to 150,916.
Donna Lopiano, executive director of the Women’s Sports Foundation, pointed out that male athletes still participate in sports in greater numbers and percentages than women. “It’s impossible to have discrimination against men when they’re over- represented, when they participate in sports far in excess of their presence in the student body,” Lopiano said.
According to Lopiano, male college athletes receive 58,000 more chances to play sports than women – based on current team rosters — and get $133 million more in athletic scholarships every year. Women make up 56 percent of the student body at universities but represent just 42 percent of the collegiate athletic population, Lopiano noted.
Jessica Gavora, who has written a book that says Title IX has been unfair to men, said she’s “sure there are isolated incidents” of discrimination against women in athletics.
“I know that what is a greater evil, however, today is that there is systematic discrimination against men under Title IX, and that is in clear violation of the letter and spirit of the law,” said Gavora, author of Tilting the Playing Field: Schools, Sports, Sex and Title IX and chief speechwriter for Attorney General John Ashcroft. “The way that the law is implemented today and the way that it is clearly understood to be enforced by colleges and universities is by creating a preference for women.”
The Education Department’s Office of Civil Rights administers Title IX. In 1979, the office gave schools three ways to demonstrate they were in compliance with the law.
Under the three-part test, schools can show that they are obeying the law by demonstrating that men and women participate in sports in numbers that are proportional to their representation in the student body; by giving evidence that they are continuing to improve opportunities for women, or by demonstrating that they are meeting the “interests and abilities” of the “underrepresented sex,” generally women.
Institutions have to meet the conditions of only one part of the test to show they are in compliance with the law. Yet partly because “proportionality” is the first prong of the test, it has become the focus of the most heated debate. This is also the case because in 1996, the civil rights office called the proportionality standard a “safe harbor,” meaning that if universities show compliance under that part of the test, the office assumes that the school is not discriminating on the basis of sex.
Those who argue for change say the proportionality test amounts to a quota.
“I think Title IX was passed as an anti-discrimination law,” Gavora said. “Today, it’s a preference law, and it needs to be once again an anti- discrimination law.”
Title IX advocates respond that the current system is fair.
“I think the issue here is sharing the sandbox,” Lopiano said. “Before Title IX, men got the sandbox and all the toys in the sandbox. Now, they have to share. Sometimes, I think the general attitude is that women can get to play with the toys, but only when the boys let them.”
The commission has recommended moving away from the strict proportionality test to allow a “reasonable variance” in the ratios. It also suggested providing “clear, consistent and understandable written guidelines” for the implementation of Title IX and abandoning the “safe harbor” aspect of the first part of the test.
Title IX advocates — including the Women’s Sports Foundation and the National Women’s Law Center, which has filed lawsuits on behalf of women athletes — criticized the commission for failing to address the issue of discrimination against women athletes. The commission also did not assess the impact of its recommendations, these groups said.
“From the very beginning of this commission, the way it was established, the mission it was provided, was not one that connected with the true purpose of Title IX, which is to address discrimination,” said Leslie Annexstein, senior counsel at the law center. “That’s a fundamental flaw with the commission.”
Two of the 15 commissioners – Julie Foudy, president of the Women’s Sports Foundation and captain of the U.S. Women’s National Soccer Team, and former Olympic swimmer Donna de Varona — wrote a minority report that took issue with the commission’s recommendations.
Foudy and de Varona wrote that “many of the recommendations made by the majority would seriously weaken Title IX’s protections and substantially reduce the opportunities to which women and girls are entitled under current law….” They added that only one proposal dealt with the budget constraints that they said led to elimination of men’s teams.
“I think that they’re perpetuating an inequity, a situation in violation of their stated principles,” Gavora said, referring to the position of the Women’s Sports Foundation, Foudy and other Title IX advocates. “They are perpetuating a situation that is eventually going to come back and bite them in the ass because American people are fundamentally fair, and the more they know about the inequities, the injustices under Title IX that are being meted out for men, the less they like it.”
UNH’s Scarano said there are still subtle cases of discrimination against women, but he admits that certain men’s sports have also suffered as a result of the law.
“I don’t think anyone can be ignorant enough to say it’s not at the hands of Title IX,” he said.
The UNH women’s swimming and diving athletes receive scholarships while the males in that sport do not. “That’s a divisive issue, and it’s not necessarily a fair issue,” Scarano said.
The situation has helped the women’s swim team succeed while the men’s team struggles to attract top-notch swimmers.
“You can definitely see the impact that it has,” said Dan Brittan, a junior from Nashua and member of the UNH men’s swimming and diving team. “The women’s team is always at the top of the conference. They’ve got a whole lot of talent. Our men’s team is struggling to keep our roster around 10 guys, which is half the size of the women’s team. We’re doing this just because we like to.”
“I don’t think this is a thing necessarily with UNH, but I think the sport of swimming for men is in real big trouble because there aren’t scholarships anywhere,” said Josh Willman, the head coach of both the men’s and women’s swimming teams.
Other New Hampshire college administrators and coaches also said they support the law.
“I firmly believe in Title IX,” said Joseph “Chip” Polak, athletic director at Southern New Hampshire University for the past 27 years. “I just always believed that there should be not only equal opportunities but equal funding.”
Polak said the school complies with the proportionality test. He added that although the intent of the law is correct, the results are flawed because schools can’t afford to add enough women’s teams without eliminating some men’s sports.
Plymouth State College has complied with the law by demonstrating that it is making continual progress toward improving opportunities for women. In 1985, Plymouth State added a women’s swimming and diving team. Seven years ago, it added women’s volleyball. It soon will add another, undetermined, women’s sport.
The school prides itself on equality, according to men and women in the athletic department.
“Everybody’s pretty equal,” athletic director John P. Clark said. “The coaches and the staff and the students are feeling that things are pretty fair right now.”
Lauren Lavigne, head coach of women’s basketball, said “equality is at the forefront” at Plymouth State.
Lavigne attended Manchester West High School, where she played three sports. At Plymouth State, she played basketball and softball.
“So many people of my generation and below have kind of taken advantage of it,” Lavigne said, referring to Title IX and the opportunities it has created for women to play sports. She said that since Bush undertook a re-evaluation of the law, “it really made us aware of how far we’ve come and [helped us] to remember all the trailblazers of years past.”
Some women athletes said Title IX has allowed them to have many of the same opportunities that male athletes enjoy.
“Look at all the opportunities for girls to play,” said Michaela Leary, who is from Nashua and plays point guard on George Washington University’s women’s basketball team. “I’m going to college on a full scholarship. If it was 30 years ago, those opportunities wouldn’t be as great.
“I think having the legislation in place forced institutions, especially universities, to really provide the financial support to allow women to play sports,” said Liz Dancause, also from Nashua and a current member of GWU women’s basketball team. “Without that, we’d still be fighting for equal opportunity to play.”
Most members of New Hampshire’s congressional delegation said they favor Title IX and the opportunities it has afforded women but added that the law should not cost men their teams.
“I think what’s important is that the law be applied in a fair and equitable way that doesn’t force sports programs to be stripped away from universities,” Sen. John E. Sununu, R-N.H., said in an interview. “That’s been an issue with UNH. They’ve lost a number of teams over the years, and I don’t think anyone thinks that’s necessarily a good trend.”
New Hampshire’s freshman congressman, Jeb Bradley, R-N.H., said he supports Title IX, but with some caveats.
“I think it’s important that we create opportunities for women’s athletics and women athletes,” Bradley said in an interview. “It’s a shame when the law may make for some universities dropping some teams. That disturbs me. At the end of the day, I want to make sure that we’re encouraging all young athletes to be able to participate to the best of their ability.”
Some men’s sports, including wrestling and gymnastics, have suffered many cuts since 1972.
The National Wrestling Coaches Association and the College Sports Council have sued the Education Department to change its interpretation of Title IX.
“We want to go back to the original intent of Title IX,” said Jamie Moffatt the sports council’s executive director. “We feel now that the pendulum has flown way too far the other way, and that male sports are getting obliterated.”
“We do think it’s a good law,” Moffatt added. “It’s just been terribly, terribly enforced.”
The wrestling coaches group lists more than 380 universities that have discontinued wrestling programs.
“It’s clear through the last six or seven months when the Title IX commission hearings were being held, there’s overwhelming support for Title IX reform,” Michael Moyer, the group’s executive director, said in an interview. “We can only hope that the Department of Education will accept this very clear signal.”
Dick Aronson, executive director of the College Gymnastics Association, said that from 1970 to 1975, there were 234 men’s gymnastics teams; today, there are 20. He said Title IX is just part of the reason for the cuts. The other problem is money.
Others, however, said universities cite Title IX as an excuse to cut teams. They could just as easily reduce the amount of money they spend on big-ticket sports, such as football, according to Title IX’s proponents.
“People have chosen to prioritize in a certain way and are conveniently hiding behind Title IX as a reason for it,” said Peter Roby, director of the Center for the Study of Sport in Society at Northeastern University in Boston. Roby said he’d like to know why schools cut some men’s teams rather than “lessening the amount of scholarships that they provide to men’s football programs.”
Last year, the University of Vermont downgraded its men’s and women’s gymnastics teams from varsity to club status. Head coach Gary Bruening said his teams were cut so the school could meet Title IX requirements.
“Both men’s and women’s teams were cut, (a) result of gender equity compliance,” Bruening said. “It was all an attempt to equal out proportionality.”
But at the time of the downgrading, there were three times as many women on the teams as men.
Parents of former Catamounts gymnasts said the teams were cut for financial reasons.
“They’ve never mentioned Title IX,” said Edie Jones, a teacher from Bow whose daughter, Becky, competed on Vermont’s gymnastics team her freshman year. “It was disappointing because she was really looking forward to being able to compete as a team, not as just a club member.”
Becky decided to stay at Vermont, and after lettering her freshman year, she now competes on the gymnastics club team.
“I think it was based on financial decisions,” said Barbara Resnick of Columbia, Md., whose son, Elie Sollins, who was on the men’s gymnastics team. “After my son went through a great deal of angst over it, he did decide to stay on at the school. Part of the decision was based on the fact that he didn’t know what was going to happen somewhere else. He was really concerned about that.”
Paige has not said when he will announce his decision on enforcement of Title IX.
(Daniel Remin is an intern with the Boston University Washington News Service.)
Published in The Manchester Union Leader, in New Hampshire.
