Student Note Criticizes EADA

In 1994, Congress passed the Equity in Athletics Disclosure Act, which requires colleges and universities subject to Title IX to report information about the number of athletic opportunities it provides to both sexes as well as certain information about athletic department expenditures (and revenues) for men's and women's programs. In a note in the Journal of College and University Law, student Kathryn Keen criticizes the EADA and argues for its repeal.

First, Keen argues that the EADA is failing in its purpose of helping prospective student-athletes decide on a college, since student-athletes are not aware of the information it makes available and don't factor it into their decisionmaking. Personally, I have never heard that helping prospective student-athletes was the purpose of the EADA and the only support for this idea is a buried statement on the Department of Ed's website. The real value of disclosing gender equity data is much broader -- it is to help the public ensure that federal dollars are not funding discrimination. The EADA makes private enforcement of Title IX possible by exposing schools with gender equity problems and by giving individuals with grievances the information they need to decide whether a violation has occurred. When similar reporting requirements don't apply, violations are more easily concealed because compliance information is so difficult to acquire. This is why legislation is pending to expand these reporting requirements to high schools, which are not subject to the EADA.

Keen's more persuasive critique of the EADA is that the data schools submit is inaccurate and/or fails to conform to a uniform standard that allows for meaningful comparison. Because the statute does not require schools to employ standard accounting practices, schools have some flexibility to generate a more favorable fiscal picture. For example, they may distinguish, and thus exclude, capital expenditures, which makes capital-intensive sports (like football) appear more profitable. Even when schools aren't deliberately manipulating financial data, by innocently assigning a particular expenditure to a different budget category than other schools, they make it difficult to make comparisons and spot trends. (Compare, for example, a school that accounts for utilities as a department expense and a school that apportions the bill to its men's and women's athletics programs based on their relative use.) Moreover, there is also no audit process or other mechanism for the Department of Education to catch and correct even obvious, plain errors, such as a $34 million data entry mistake in a report filed by the University of Texas. And, though Keen looked at the reporting of financial information, not the reporting of number athletic opportunities, we've had opportunity to note, there are even reporting discrepancies there as well.

But while I agree with Keen that the EADA is flawed in this regard, I don't agree with her conclusion that the statute should be scrapped. I think that the transparency the statute provides is enormously valuable, not necessarily to prospective students (though this is probably somewhat and increasingly so), but to the public at large. Information is the foundation for private enforcement, which has been demonstrably more effective than agency enforcement at bringing about real improvements in gender equity. To that end, it is crucial for reported data to be accurate and standardized. Rather than calling for its repeal, we could seek to improve the EADA along these lines, by requiring standard accounting practices, imposing an audit system or one of peer review, by clarifying schools' obligations to include and apportion particular expenses. The NCAA, Keen points out, has already implemented a more stringent, meaningful, and accurate reporting obligation for its members (this is not a substitute for the EADA, though, since NCAA does not make its reports public). This could provide a model for the Department of Education to follow -- not to mention a retort to schools who might otherwise object that enhanced reporting requirements increase the the workload of their number-crunchers.

Citation: Kathryn Keen, The Equity in Athletics Disclosure Act: Does it Really Improve the Gender Equity Landscape?, 34 J. of College & Univ. L. 227 (2007).