UC Berkeley Cuts Five Teams

As Kris noted recently, the University of California, Berkeley athletic department has been considering eliminating sports as a cost-reduction measure. So it is sadly no surprise that the Chancellor has announced that baseball, men's and women's gymnastics, women's lacrosse, and men's rugby will be no longer be varsity sports. Men's rugby will occupy a new "varsity club" status.

I have a couple of questions about whether this decision complies with Title IX. First, what is varsity club status? It seems like the rugby team will continue to receive some university support -- more than the club teams receive but not as much as varsity teams receive. Title IX does not preclude Cal from making up new status labels for its sports, but those labels must be equitably applied. If a women's sport asks for "varsity club" status, I cannot see the grounds on which Cal would deny them.

Second, I have concerns that the resulting distribution of athletic opportunities complies with Title IX. Before the cuts, Cal could have claimed compliance with prong two or prong three, but eliminating women's teams forecloses that option. This leaves prong one: substantial proportionality. As Kris noted in her earlier post, Cal's women received about 41% of the total athletic opportunities (385/948), despite constituting about 53% of the student body. After the cuts, they still receive about 41% (385-45/948-102*). There is no way a 12 percentage points qualifies as substantial proportionality, so my question is, on what basis is Cal making that claim?

* This denominator figure is adjusted by the loss of both gymnastics teams, baseball, and lacrosse. I did not subtract the 60 terminated opportunities in rugby from the denominator because Cal's EADA report did not include men's rugby when calculating the total number of athletic opportunities.

School Lunch Subsidies Render Catholic Schools Subject to Title IX

Congress, whose powers are limited to those enumerated in the Constitution, passed Title IX under its power to spend for the general welfare. Consequently, the statute's ban on sex discrimination only applies to those schools that receive federal funding. Sometimes this restriction is mischaracterized one that limits the laws school to public schools. But a recent federal court decision reminds us that private, parochial schools can be federal funding recipients. In that case, schools operated by the Diocese of Greensburg (Pennsylvania) were deemed subject to Title IX by virtue of accepting federal subsidies under the National School Lunch Program. (Though the court did not need to address the question, it also considered the schools federally-funded by virtue of their participation in the E-rate program, which entitles the school to discounts on qualified purchases of classroom technology.)

As the decision in this case points out, courts have uniformly recognized that schools receiving school lunch program subsidies are subject to Title IX. But what made this recent case trickier was that the Diocese of Greensburg operates several schools, only one of which participated in the school lunch program. The plaintiff alleged that the Diocese was liable for Title IX violations that occurred at one of other schools -- one did not participate in the school lunch program. But the court reasoned that Title IX would still apply. Since the Diocese did not organize or operate its schools as separate legal entities, the Diocese itself is the educational institution subject to Title IX by virtue of receiving federal funds for one of its programs. It is the same theory that renders one university department (such as athletics) subject to Title IX based on the federal funding received by another program or department.

This seems like a reasonable interpretation of the Civil Rights Restoration Act, which amended Title IX to impose institution-wide liability. What remains to be seen is whether this interpretation will extend Title IX's application to parochial schools beyond this particular case. That will turn on whether dioceses with several schools typically organize them separately, and if not, whether they could easily reorganize them as separate entities in order to limit liability.

Decision: Russo v. Diocese of Greensburg, 2010 WL 3656579 (W.D. Pa. Sept. 15, 2010)

Ball State agrees to changes

Issues of gender inequity in Ball State University's Athletic Department have been actively discussed for almost five years now but the university, in an effort to end OCR's ongoing investigation of the department, has come out and said it will bring the equity to the department in 10 program areas, according to a Chronicle of Higher Education article this week. They have also agreed to investigate the departures of several coaches of women's teams. This is something we haven't really seen before. I don't know if we can truly consider this a voluntary move even if it was Ball State's idea. The cynic in me thinks it was a little CYA-ish; especially when I see that the athletic director has claimed publicly that there was no retaliatory coaching changes made during the past five years and that Ball State will not admit it was not in compliance with Title IX. Just about a year ago we reported that the firing of tennis coach Kathy Bull, who had served in the position for 22 years, was a little suspect. This all serves to fuel my healthy suspicion around internal investigations. But no doubt this case was a factor in Ball State's decision to put forward an image of transparency.

Can Colleges Improve Gender Balance in Engineering?

I work at a college where male undergraduates are in the majority because they are in the majority of one of the college's biggest majors, engineering. I have participated in discussions about how to improve the gender balance, and it bothers me that the best suggestion is to add more female-dominated majors, like education and allied health. In my mind, this "solution" just buries an important social problem for the sake of improving a college-wide statistic. As I recently blogged, systemic biases, stereotypes, entrenched cultural expectations, as well as outright discrimination in such matters as compensation and the structuring of job requirements operate to segregate men and women into highly polarized fields of study. Though colleges are not necessarily to blame for these forces, it is wrong, I think, to affirm that polarity by inviting it as a solution to the problem of overall gender imbalance. But at the same time, I recognize that it is difficult for colleges to address the problem of gender disparities within majors. By the time students reach college, many already have some sense of what they want to study, and if they're not already interested in STEM subjects, college is not usually the place where that happens.

So I read with interest this article about efforts Notre Dame is making to improve the gender balance among its engineering undergraduates. Specifically, it has implemented a dual-degree program with a nearby St. Mary's, a private women's college. St. Mary's students majoring in math or science may also take pre-engineering classes at Notre Dame. After graduating from St. Mary's in whatever they majored at there, they may enroll at Notre Dame for a fifth year, and complete a second degree in engineering in that time. Seven students have made that choice. These women improved the gender balance in Notre Dame's engineering college not just by being there, but by making it easier to recruit female first-year students who see value in a more gender-integrated program. This has contributed to Notre Dame's increase in the percentage of female first-year students in engineering -- from 22 to 30% over the last eight years. Other efforts are also credited. For instance, Notre Dame carefully assigns first-year female engineering students to pre-selected dorms where they live in proximity with each other and upperclass mentors.

Even colleges that don't have an affiliated all-women's college in the picture can make similar changes that might help improve gender balance in engineering. First, targeting women for inclusion sends the right message that the university believes they can become engineers if they want to. Second, the careful dorm assignments help create a community of support. Third, and most importantly, recognizing that it might take longer for women to warm up to the idea of becoming engineers compensates for the fact that women in engineering have fewer role models, might have received less support for that choice in their earlier education, and might need some time to deprogram from the cultural messages like "math is hard" Barbie. The extra year/joint degree options could make it easier for any student to try out engineering and see if it's a fit. Tuition assistance and scholarships for that extra fifth year could make the dual degree in engineering even more appealing. These options should be directed at undecided students, as well as students who have already chosen some other major, like, say the female-dominated programs in allied health. Imagine someone pitching to them the value of a second degree in, say, biomedical engineering, and then offering the academic, social, and financial support to make that happen.

There is one thing, though, that colleges should not copy from Notre Dame. Two university officials quoted in the article referred to female engineering students as "girls." No one referred to their counterparts as "boys," and it would have stood out if they had. I agree that to overcome cultural biases and stereotypes, colleges and universities need to pay special attention to female students in STEM fields. But that is not a license to infantilize those students or think of them as less capable or mature than their male counterparts. Hopefully those quotes are an isolated occurrence. Otherwise, the message it sends will undercut the positive steps toward dismantling the gender imbalance in engineering.

Penn State elevates hockey

Both the men's and women's club ice hockey teams at Penn State will be elevated to varsity status. The announcement, which will likely contain the time table for the move, will come later this morning.
The teams are the beneficiaries of very generous Penn State alum Terrence Pegula who is giving $90 million to the university in order to make things happen, including the construction of an arena.
No official word on which conference the men's team will play in. (Big Ten doesn't have a hockey league though some are speculating that this addition will push them to add one and perhaps expand men's ice hockey in the midwest.) And not even a mention that the women will also need to join a league. (Ahem, ESPN.)

Women Earned More Doctoral Degrees

According to a recent report by the National Council on Graduate Schools, women received more doctoral degrees than men for the first time ever. In 2008-09, women earned 50.4% of doctoral degrees awarded in all disciplines, compared to 44% eight years prior. This is good news, as it shows that the parity reached first in undergraduate degrees and then masters degrees, has finally trickled up to the doctoral degrees. Some credit for this must go to Title IX, which prohibited gender caps and quotas that limited women's admissions in higher education, and helped prepare these future Ph.D.s by strengthening their educational opportunities in early education as well.

But despite this good news, it is too early to declare that discrimination in education is dead and buried. First, there is still a wage disparity. NPR coverage of the NCGS study noted that male professors with PhDs earn $87,200 on average -- $16,600 more than their female counterparts. Moreover, even though there is overall parity in doctoral degrees awarded, there are extreme disparities within disciplines. Men earned the vast majority of doctoral degrees in engineering, math and hard science, while women dominated fields like education, health sciences, and public administration. The belief that such polarization can be explained by innately different brains is rapidly losing scientific credibility, which requires us to examine those fields for the presence of bias, double-standards, or a structure that somehow tends to favor or support graduate students personal lives and obligations that are often gendered (i.e., pregnancy and childcare). Other possibilities: are men are deterred from helping professions by stigma or low earning potential? Are they able to climb the ladder in those fields without a ph.D.? While cheering the overall degree parity in doctoral degrees, the fact that many fields remain highly gendered should still be cause for concern.

Is Cal cutting?

Maybe, according to a San Francisco Chronicle article based largely on a report produced by the Chancellor's Committee on Intercollegiate Athletics at Berkeley. Cal athletics has been incurring a $10 million deficit (i.e. they spend $10 million more than they make) and that deficit has been covered by the Chancellor's discretionary fund. But given the dire economic straits the state of California has found itself in, such a deficit just isn't acceptable. One of the suggestions for dealing with it? Cutting 5-7 sports. Cal carries 27 varsity sports (second in the PAC-10, to Stanford; and second in all US public institutions). Still 5-7 sports all at once is fairly shocking. Football, men's and women's basketball, and women's volleyball are all sports required for membership in the Pac-10 so they are safe. According to the report, the decision on which sports will be eliminated is going to be based on both competitive and academic success.
And, of course, Title IX will be considered as well, as the article notes towards the end.
My initial, quick glance at the EADA data told me that Cal does not use proportionality to demonstrate compliance with accommodation of interests and abilities. That I could discern this from such a quick glance is not good. I don't know if Cal is adhering to prong two or three at this point, but when/if they cut sports, proportionality will be their only option.
Here is the way things break down right now (the EADA data is from the 2008-09 academic year): women comprise 53 percent of the undergraduate study body; they receive 385 of the 948 total opportunities in athletics. That is just under 41 percent.
I don't envy Cal administrators the task in front of them.

Professor George on "Opportunity, Choice, and Discrimination Theory Under Title IX"

In the current issue of the Yale Journal of Law and Feminism, Professor B. Glenn George from the University of North Carolina School of Law proposes that/how Title IX proponents should reshift their focus from proportionality compliance to more holistic reform. Her article, "Forfeit: Opportunity, Choice and Discrimination Theory Under Title IX" takes as a starting point that proportionality test for measuring equity in the distribution of athletic opportunity, has been ineffective and even counterproductive in generating true equality, as evidenced by the "leveling off"of women's participation in college sports. Though she does not call outright for regulatory reform that would eliminate the proportionality interpretation, I read her to be suggesting a policy and advocacy agenda that moves away from proportionality as a goal.

For one thing, she points out that the proportionality standard does nothing to prevent colleges from adopting the "JMU model" of compliance, and leveling down women's and men's athletics to the bare minimum that Title IX and NCAA requirements allow. Such response does nothing to support the ostensible goal of promoting and enhancing opportunities in women's sports.

For another, creating opportunities at the college level, without more, won't necessarily increase participation. Female college students report lower interest in athletic participation than their male counterparts, and Professor George warns against writing this data off as the product of lack of opportunity that can be solved by pursuing a proportionality objective. Female college students' lack of interest in athletics must be examined for related context, which may include their higher rates of involvement in community and extracurricular activities, more time devoted to academic pursuits, lower financial security upon entering college and greater likelihood of seeking a part time job, and lower likelihood to self-identify as "competitive."

Finally, pursuing proportionality in college sports draws the focus away from other things that might be just as valuable, or even more so, to the project of dismantling inequality. For example, a goal of attaining proportionality doesn't encourage anyone to promote younger girls' athletic participation in popular and established sports. (Colleges aren't going to add a second women's basketball team, for example, just because interest in that sport has doubled.) Proportionality also draws resources and focus to the most elite level of sport, away from other contexts, like club and intramural sports, which are more accessible to a wider range of abilities, and capable of generating new interest in athletics.

Professor George offers a couple of ideas of how, instead of pursuing proportionality, we should seek to restructure sports more generally in ways that promote equality. For example, rather than eradicate the statistical disparity in athletic participation, we could try to neutralize the disparity in privilege that results from the disparity in athletic participation, for example, by taking athletic scholarships off the table. For another, we could change the nature of participation in ways that allowed athletes to simultaneously hold a job if they needed one, to devote time to their school work or community service or otherwise have a more well-rounded life. In addition to other benefits, such reform would change the definition of "athletics" to fit women's interests, rather than the other way around.

In sum, I found Professor George's article to be compelling. Though I believe it is necessary to retain the proportionality standard in order to protect women's athletic opportunities, it is good to be reminded of its shortcomings and the tradeoffs that such a standard requires. There's no easy way to balance the pros and the cons of incorporating proportionality into our measure of equality, but for starters, this Article makes clear that we can't let Title IX and the goal of women's sports advocates be reduced to just that.

Citation: B. Glenn George, Forfeit: Opportunity, Choice, and Discrimination Theory Under Title IX, 22 Yale J. of Law & Feminism 1 (2010).