What are the Title IX Implications of USC's 4-Year Scholarship Plan?

On Monday, University of Southern California announced that it will offer four-year scholarships to all scholarship athletes in football, men's basketball, and women's basketball.  This modifies the university's existing practice of offering all scholarships on a one-year, renewable basis. 

Multi-year scholarships have only been permissible under NCAA rules since 2012.  The NCAA actually banned them in 1973 as a means to promote competitive equity by leveling the playing field for schools that cannot afford to take that kind of risk.  But concerns for athlete's welfare and education motivated the NCAA's change of heart, and reportedly, USC's as well.  An athlete with a four-year scholarship has "job security" if you will -- they cannot lose their scholarship status as long as they continue to follow team and NCAA rules. An athlete with a renewable scholarship has to worry every year that their coaches will replace them due to poor performance or injury -- leaving them to either figure out how to cover tuition or else drop out of school altogether.

Multi-year scholarships are thus quite beneficial to athletes.  But like any benefit, they must be allocated on a gender-equitable basis in order to comply with Title IX.   

Title IX regulations specifically address athletic financial aid at 34 C.F.R. 106.37(c).  This provision  requires that aggregate dollar amount allocated to athletes of sex be proportionate to the ratio of athletes of each sex -- i.e., if 50% of the athletes are female, they should receive 50% of the overall available athletic financial aid.  Yet this provision is likely unaffected by an inequitable distribution of multi-year scholarships versus one-year renewables. This is because a multi-year scholarship paid out over the term of years does not increase the allocation of athletic financial aid in a given year (one-fourth of a four-year scholarship and a one-year scholarship are the same in dollar amounts).

But elsewhere, at 34 C.F.R. 106.41(c), the Title IX regulations mandate that athletic opportunities receive equal treatment based on sex.  For example, under this provision, it would be unlawful to provide higher quality equipment or facilities to only men's sports. "Tiering" is still permissible -- a school does not need to provide the same benefits to all sports -- but there must be gender equity within the tiers themselves.

In my opinion, a school that provides four-year scholarships to 98 male athletes (85 football scholarships, 13 basketball) and 15 female athletes violates 106.41(c) -- the same way that it would violate Title IX to provide any other perq on this inequitable basis.  If this is hard to understand, imagine that USC provided laundry service to 15 female athletes and 98 male athletes -- a clear violation of equal treatment.  The "job security" aspect of a four-year scholarship relative to a one-year renewable is just another characteristic of how athletes are treated, similar to laundry service. Moreover, because the regulation says that the Department of Education will enforce this provision by considering a number of enumerated factors "among others," it is not relevant that 106.41(c) does not expressly mention multi-year scholarships a factor of equal treatment. 

Finally, it will not be sufficient for USC to justify its policy as only pertaining to revenue-producing sports.  In 1974, Congress considered an amendment to Title IX that would have exempt revenue-producing sports.  But the fact that this amendment failed to pass underscores the law's agnosticism when it comes to revenue.  Neither Congress, the courts nor the Department of Education have ever endorsed a double-standard for revenue and non-revenue sports.

It is good that schools are being responsive to concerns about athlete welfare and education.  But the law requires that they do so on a gender-equitable basis.