The first prong of the Title IX compliance test is currently abused and should not serve as a safe harbor for institutions unwilling to fund additional female participation opportunities. Strict scrutiny review of all Title IX compliance grievances would better protect educational student-athlete experiences. A “2011 Clarification” implementing this standard would hold financially capable schools responsible for meeting the viable athletics interests of all students rather than cutting educational opportunities to divert funds for football and basketball. The option of reaching Title IX compliance through reduction of men's non-revenue generating athletic programs should be used only as a last resort by athletic departments that truly cannot afford them. Under this standard, if male student-athletes' opportunities are cut, they can file a Title IX grievance requiring the university to prove the action furthers the compelling interest of increasing female opportunities and that no less restrictive means exist. The use of strict scrutiny in a Title IX setting would not always prove fatal to compliance measures because legitimate cuts would survive the standard. Instead, the use of a strict scrutiny standard for Title IX would provide much needed protection against the use of illegitimate and unnecessary means under the guise of remedying past discrimination.My understanding is that under the authors' proposed standard, a university's decision to cut an inexpensive men's sport like track would not survive "strict scrutiny," because it doesn't free up any money to re-allocate to address existing disparities in women's sports. That would leave universities seeking to comply with the proportionality prong with the choice of either adding women's teams, or cutting back on the doesn't-generate-as-much-revenue-as-you-probably-think sports of football and basketball. Option A would be good for women's sports. Option B would still be bad for the men's teams that would be targeted instead, but the scrutiny on those sports could help curb rampant commercialism and arms-race spending in big-time college sports. It's an interesting thought.
Article is: Jesse M. Rappole, Thomas A. Baker III, and Kevin K. Byon, Exposing the Shell Game: The Need for a Narrowly Tailored Approach to Title IX, 8 DePaul Journal of Sports Law and Social Problems 1 (2011).