NCAA Scholarship Limits and Title IX

ESPN's Peter Keating had a column last week challenging the oft-heard claim that Title IX is the enemy of non-revenue-producing men's sports such as baseball, which receives far less scholarship dollars than many women's sports.  Keating says that "the real enemy of men's sports isn't Title IX. It's NCAA scholarship limits." The NCAA established scholarship limits in the 1970s as a means of ensuring that schools don't hoard players by providing scholarships to non-players so that they don't play for opposing schools instead.  The limits themselves, however, are not proportionate to squad size or interest, but rather, to favor revenue-generating sports.  The scholarship limit for football, for example, would allow a school to provide a full ride to nearly four entire starting lineups, while in other sports like soccer and water polo, the maximum allowed scholarships wouldn't even stretch to cover one starting line. 

Keating rails against the apparent arbitrariness of scholarship limits on the women's side as well.  Rather than set them proportionate to interest, they seem to be engineered again to protect revenue-generating sports, like basketball.  And, he says, "by handing down artificially high scholarship limits for sports such as ice hockey and rugby, the NCAA is telling schools they can comply with Title IX by herding athletes onto those teams."

Keating proposes that the NCAA do away with (or at least, greatly liberalize) scholarship limits for specific sports, and allow schools to set their own priorities about which sports they want to favor with scholarship dollars to lure recruits.  Deregulating the scholarship limits is an interesting idea, and Keating is persuasive that it could restore flexibility, accountability, and common sense to college athletics.  Some schools might decide that their scholarship money is better spent building a national reputation in a men's sport other than football or basketball, and decide to promote itself as a baseball, lacrosse, or wrestling school instead.  In the aggregate, then, we might see a better balance of men's athletic opportunities distributed among different sports rather than concentrated in football.   And the athletic director who continues to pour scholarship dollars into a mediocre football program to the exclusion of other more competitive teams will have some explaining to do. 

Title IX would still require schools to distribute scholarship dollars proportionate to athletic participation rates of each sex, so that would protect against a school deciding to distribute scholarship funds in a way that favors men's sports over women's (well, theoretically, anyway...such disparities exist now, notwithstanding Title IX).  Eliminating the scholarship limits could also allow schools to better match women's interests in more popular sports, rather than searching for "phantom" hockey and rugby players to fill out their requirements. 

I know that Division I is in a deregulatory mood right now, with working groups seeking to cut the number of regulations that member institutions must follow.  It would be one thing for Division I to tinker with restrictions on minutia, like the number of text messages one can send to a recruit.  It would be interesting to see if more radical proposals like Keatings are also in the works.  

Alfred University Agrees to Voluntary Resolution of OCR Complaint

Alfred University has agreed to construct a new softball facility as part of a voluntary resolution agreement with the Department of Education's Office for Civil Rights.  In 2008, some parents of female student-athletes at Alfred filed a complaint with OCR, alleging disparities in the quality of facilities available to female athletes.   The new stadium will be ready for action by next season, so Alfred's softball team will no longer have to play home games at a nearby high school. 

In addition to the softball field, the complaint also addressed locker room inequities, which are reportedly already under renovation as part of the resolution of this case.  

UNI must revamp sexual assault policies, procedures

The University of Northern Iowa recently underwent an audit (seemingly in response to a 2004 case of alleged sexual assault of a female student by two male student-athletes that was improperly handled) of its sexual assault policies and procedures. And the results were not good.
According to this article, students who need to report an incident receive conflicting information and feel unsafe and uncertain about the prospect of reporting anything other than an assault by a stranger (which is a small percentage of assault cases).
Part of the problem is the lack of information in UNI's website, no police officer designated and trained to handle sexual assault cases (or at least no one is named in a way that students could find him or her), the hesitation to report to police (versus a campus group or judicial board or component of student/residential life) and some questions over the jurisdiction and responsibilities of the university's Title IX coordinator as well as certain impediments to her being able to do her job effectively. Also, apparently, there is a really bad, mandatory video on sexual assault that the students who were surveyed found outdated and unhelpful.
There appears to be lack of training campus-wide on these issues, especially in the athletic department.

Featured in Athletic Business

Erin has a brief interview in Athletic Business about the history and current state of Title IX.
Check it out.

Darien School Board Concerned About Boosters' Gift to Football Team

Some members of the Darien, Connecticut school board are reportedly expressing concern over the board's decision to accept a $1600 gift from the unified booster club to purchase scouting cameras for the football team.  Apparently, the boosters asked all coaches what equipment they needed, and honored the two requests received: the football team's request for cameras, and the basketball cheerleaders smaller request for competition music.

I commend the board for scrutinizing the Title IX implications of accepting any gift.  Especially in Darien, which has had plenty of Title IX compliance problems in the past.  It's worth noting, however, that accepting a larger gift for a boys team doesn't necessarily create a Title IX problem. Nor is it safe to assume that just because the boosters didn't turn down any gift requests that all is equal between the girls' and boys' teams.  If I were the concerned members of the school board, I would want to know why the coaches of girls' teams did not request any new equipment.  If the football players benefit from more proactive coaches who are more aggressive about capitalizing on available resources, then that is an inequity in the quality of coaching available to each sex.  Relatedly, I would also want to if the girls' teams are foregoing scouting, or do they already have the equipment they need?  If the fact that only a boys' team requested cameras is a sign that only boys have access to a program that is operating at the level of sophistication where such equipment is required, then that is clearly a Title IX violation that the school board should rectify.    

The little moments in Title IX history

In the grand scheme of things, Title IX is not that old. Despite this, there is a lot of its history that we just don't know. We know about the legislative history. We know about the big cases, the watershed moments, the key players, the tireless advocates.
We don't know about all of the little things. Today whenever a complaint is filed--anonymously or not--we can often find out about it. But this is a recent phenomenon.
We don't know how many coaches went to their administrators 20, 30, 40 years ago and said "hey, the women's team needs better uniforms. And we are legally entitled to them." We don't know how many parents sought better treatment for their daughters.
So whenever I hear stories of such moments, I get a little excited because some of the gaps get filled and I am reminded of the ways in which activism works at both macro and micro levels.
Today I read one such anecdote about Kathy Delaney-Smith, the current coach of Harvard's women's basketball team. It was told by sports journalist Jackie MacMullan who was coached by Delaney-Smith at Westwood High School in Massachusetts right before the latter went to coach at Harvard and the former went to play at University of New Hampshire.
MacMullan, in a speech at a fundraiser for UNH basketball, told the crowd about the power of Title IX and the power of Kathy Delaney-Smith.
If you saw No Look Pass, the documentary about former Harvard player Emily Tay, you got to witness the power and passion and colorfulness of Delaney-Smith. These were traits she apparently had when coaching high school as well. MacMullan said that as soon as her coach got tenure at Westwood High, she filed a discrimination lawsuit against the school. She wanted the girls to have better uniforms and equipment and games scheduled on Friday nights--like the boys. And by the time MacMullan graduated, they had personalized warm-ups and games every other Friday night.
Stories like these show us that while concerted efforts were put into getting girls more playing opportunities, other smaller, less visible efforts were being made to improve the quality of the opportunity.

ACLU Demands Schools "Teach Kids, Not Stereotypes"

The ACLU has launched a program called "Teach Kids, Not Stereotypes" to end the practice of illegal sex-segregated classes across the country.  As part of this initiative, the ACLU sent "cease and desist" letters to school districts in Maine, West Virginia, Alabama, Mississippi, and Virginia, which the ACLU alleges uses generalizations and stereotypes prohibited by law as the basis for segregating girls and boys for instruction in core curriculum.  For example, according to this article about the ACLU's action in West Virginia, some schools there segregate the sexes so that they can teach  boys with examples about tools and sports and teach girls with examples about shopping and hair.   A "cease and desist" letter typically threatens legal action against a recipient that does not stop the practice alleged to violate the law.

Another part of the ACLU's initiative is to use public records laws to gather information about possible similar abuses of single-sex education by school in other states such as Massachusetts, Indiana, Idaho, Washington, and Illinois, Alabama, Wisconsin, North Carolina, South Carolina, and Virginia.  Based on a prior records request of schools in the state of Florida, yesterday the ACLU of Florida asked the state Department of Education to investigate programs across the state for apparent violations federal and state law.   This suggests that school districts in the above-named states could be in store for either litigation or state enforcement.  The ACLU has successfully used litigation and the threat of litigation to end illegal segregation in Louisiana's Vermilion Parish and in Pittsburgh, Pennsylvania.

There are hundreds of school districts now experimenting with single-sex education in the wake of the Department of Education's 2006 regulation that allows sex-segregation in core courses so long as it is voluntary, substantially equal, accompanied by co-ed alternatives, and tailored to an important educational objective.  For example, as the ACLU argued in the Vermilion Parish litigation, a school could "offer an all-girls' physics course where girls had previously not enrolled in physics classes, or an all-boys' poetry class where boys traditionally avoided the poetry elective" so long as equivalent physics and poetry classes were also available in a co-ed format.  Generalizations and pseudoscience about learning differences are not the identified educational objectives the Department of Education appears to have in mind, though they seem to be the most common justification for single-sex classes.  Given this likelihood of widespread abuse, it is appropriate that the ACLU is attacking the problem in a manner designed to have an impact in states across the country.

Law Student Note Seeks to Revive Relative Interest

I try to acknowledge all new scholarly publications about Title IX that I come across, but this one is a challenge.  It's a law student note in the Valparaiso Law Review, and its author argues that the three-part test should be replaced essentially by the "relative interest" standard, under which schools may award opportunities proportionate to the professed interest levels of each sex.  Of course, this standard has been rejected by many courts as short-sighted of how interest develops in response to availability opportunities and as a sure-fire way to cement existing disparities in opportunities between the sexes.

In general, I support law students' using the opportunity of writing a scholarly note to develop critical thinking, analytical, and writing skills, and I even believe that these goals are more important than the workability or favorability of the overall recommendations they put forth in their notes.  So I'm not really inclined to criticize the author's re-visitation of relative interest.  But it is within this educator's purview to call out this note for some distorted reliance on my own scholarly work to support that idea.  First, she says that on page 836 of my Iowa Law Review article, I "stat[e] that allowing schools to use surveys to assess interest in athletics provides a more accurate representation of students' needs and therefore is a better option for Title IX compliance."  (p.  594, nn. 204, 206).  You can see for yourself, I state no such thing.  Then, she cites page 875 of my article, claiming that it says "that with some changes to the interpretation, the third prong of the test and even the Model Survey could be a good assessment of Title IX compliance." (p. 596, n. 218).  Actually, I have never had a word of praise for the Model Survey, not on page 875 or any other page I have written.  Moreover, I clearly say there and elsewhere that "interest-defined compliance has always conceptually defied Title IX."

Westlaw has a system for putting red flags next to cases that should not be relied on as a source of law.  It's too bad we can't do the same for articles and notes.  If so, I would put one next to:

Brenda L. Ambrosius, Title IX: Creating Unequal Equality Through Application of the Proportionality Standard in College Athletics, 46 Valparaiso L. Rev.  557 (2012).

Informal segregation in schools

Erin and I are proud to call ourselves everyday athletes. We reap the obvious benefits: physical and emotional health; building and maintaining friendships; a greater appreciation for the environment in which we have the privilege of riding and running and playing.
And most of our everyday athlete companions know of our work on gender equity. So on a group charity bike ride last weekend, one of our friends pulled up alongside me and said "Kris, I have to tell you something that happened at our school."
A few weeks ago, the principal at our friend's public school (she is a teacher) divided up the students in the cafeteria at lunch and had them compete to see which group could successfully complete their times tables the fastest. Did the principal divide the children based on their birthday months? Their last names? The color of their shirts?
No, she put the girls against the boys.
Our friend was disgusted. She said she picked up her students after lunch and many were crying. Her experience and her awareness of the problems of pitting boys against girls lead her to a post-lunch talk with her students in which she told them that she thought it was wrong for adults to do that to them. She told them that everyone has different abilities but that they are not based on whether they are boys or girls.
We write a lot about formally segregated classrooms in public schools and the problems and stereotypes engendered and perpetuated by such a system. But gender segregation happens in numerous informal ways every day in public schools. And it is clear that some educators are ignorant of its effects and some have to compensate for this ignorance.
We often wish that administrators in athletics would receive training in gender equity issues. I think I just assumed that teachers-in-training were receiving this kind of education. But maybe not.

No, Santa Monica College, That's Not How Title IX Works.

Santa Monica College just added men's soccer.  OK, that by itself isn't a Title IX story, although when you take into consideration that women already only receive 43% of athletic opportunities despite constituting 52% of the student body, such a decision to widen that gap rather than narrow it certainly raises questions about the college's prudence and good judgment.   

Rather, the specific Title IX angle here is that SMC actually justified the decision to add men's soccer as somehow required, or at least blessed, by Title IX's prong three.  According to this article, SMC's VP of Student Affairs says that "SMC is in compliance with Title IX because men’s soccer has been the most requested sport by incoming students during the application process."

Um, no.  Title IX does not let you demonstrate compliance by showing that you added you added "the most requested sport by incoming students."  Prong three is an alternative to showing that athletic opportunities are proportionately distributed.  It requires that you to respond to unmet interest of the underrepresented sex, not the sex that already receives a majority of athletic opportunities.  Moreover, I'm not sure that SMC's prong three analysis of women's interest, which consisted of "looking over" the "incoming student application data" would satisfy prong three if OCR was looking over their shoulder.  While it may be the case that admissions data demonstrates no interest beyond the women's sports that are already offered at SMC, the prong three inquiry is actually much broader than that, and for good reason.   If you are only surveying the school's incoming students, you are only hearing from the ones who applied notwithstanding the lack of athletic opportunities.  You wouldn't hear from the women who would have applied IF you had a golf team (for example).  That is why OCR requires a prong three analysis that takes into account things like the popularity of sports at the high schools from which your student body is drawn.

Before I close, let me just shed some skepticism on the claim that all women's interests are satisfied by SMC's existing opportunities. Look at the rate of high school participation compared to college opportunities.  You don't think there's likely some unmet interest among women, as well as men?    

SMC, if you need some clarification on Prong 3, you're in luck because OCR has written one -- it's been around since 1996.