Wednesday, January 17, 2018

Title IX Prompts SIU to Add Women's Soccer

Recently Southern Illinois University announced that it would add a women's soccer team in order to resolve questions about its Title IX compliance. Last year, the university's cost-cutting move to eliminate its men's and women's tennis teams along with several scholarships in men's swimming, prompted the filing of a Title IX complaint with the Department of Education's Office for Civil Rights. Cutting viable women's teams, even when a men's team is cut simultaneously, often violates Title IX because the school can no longer claim that is continuing to expand opportunities for the underrepresented sex (the second of the three-part test), or that is fully and effectively satisfying the interests of the underrepresented sex (the third of the three-part test).  A school that cannot comply with either of those tests must therefore show compliance with the proportionality standard (the first part of the three-part test), or risk enforcement action by the OCR. Most schools offer disproportionately higher percentage of opportunities to male than female students, and therefore have difficulty meeting this test. Indeed, publically available data about SIU's participation and enrollment suggests it does not satisfy the proportionality standard, since women constitute 46% of the student body but receive only 39.6% of the athletic opportunities.

This disparity existed before the tennis cuts as well, but at least then SIU could more plausibly claim that women's interests were fully satisfied, and thus that it demonstrated compliance under part three. Now, there is clearly an unmet interest in tennis, which some might suppose should be remedied by restoring the women's tennis team. But a university can decide which part of three-part test it demonstrates compliance -- any one of them will satisfy OCR. So adding women's soccer is a viable compliance strategy if in the end the percentage of female athletic opportunities rises to to 46%. In this spirit, SIU has pledged to OCR that it will add a women's soccer team that will have its inaugural season in 2019-20. 

Yet, adding soccer alone probably isn't going to be enough to bring the university into compliance. Even if the roster provided 30 opportunities, which is probably too many, that would only raise women's share of athletic opportunities to 43%.  This explains why the university has also committed to expanding opportunities on its existing teams, "to the maximum extent feasible... while still ensuring meaningful intercollegiate athletic opportunities are being provided for all team members." Done right, this will mean investing more resources to ensure the existing level of quality offered by current programs are not diluted as more players are added. If the university is seen to be padding its rosters on women's teams, it runs the risk of not being able to count those surplus opportunities in its proportionality calculation. The reporting requirements the university has agreed to will help OCR oversee this and the other aspects of the compliance agreement.