Most people think of Title IX as the statute that forces schools to cut men's sports. The lawsuit filed by four former female tennis players against Missouri State University, which settled yesterday, gives us an opportunity to consider: when can a school cut women's sports?
First, it bears noting that neither the statute nor the implementing regulations that govern athletics say anything about cutting sports--only that men and women have an equal opportunity to participate in athletics. All too often, however, schools face financial burdens that have nothing to do with Title IX, which force them to scale back athletic programs. When this happens, Title IX has something to say about which sports get cut and which sports don't.
University athletic programs can satisfy Title IX in one of three ways. First, they can ensure that the distribution of athletic opportunties is proportional to the gender breakdown of the student body. In other words, if the student body is 55% female and 45% male, close to 55% of the athletic opportunities must go to women. Or, second, they can show continuing progress in expanding opportunities in women's sports. Or, third, they can show that they are meeting the interests and abilities of all the women students who want to play sports.
These three options operate to immunize women's sports from cuts unless the athletic program satisfies the proportionality option after the cuts are made. The reason: cutting an existing women's team automatically makes a school ineligible for compliance under the second or third option. It is the exact opposite of expanding opportunities (so no compliance under number 2) and it automatically means there are women--players on the eliminated team--whose interests and abilities are not being met (and there goes number 3).
Every federal court that has been asked has affirmed this interpretation of the regs. See, e.g., Cohen v. Brown; Neal v. Board of Trustees; Roberts v. Colorado State Board of Agriculture. Because logically, it makes sense. If you have to shrink the pie, you shouldn't be able to take away from the person who already has a smaller piece.
In Missouri State's case, the decision to cut women's tennis along with four men's sports (indoor indoor track, outdoor track, cross country, and tennis) resulted in a proportionate distribution of athletic opportunties. So it was probably OK. I think both parties must have valued the plaintiffs' chance of winning as rather small because the settlement amount was $1000 per plaintiff, or $4000.
This isn't to say that athletic cuts aren't sad. Tragic even--for any sport, men's or women's. But all to frequently Title IX is vilified for putting men's sports on the chopping block. If there's any silver lining to the Missouri State case, maybe it's to serve as a reminder of the neutrality of the equal treatment principle: when opportunities for men's and women's sports are equally allocated, they are equally vulnerable. Sad, but fair.