Hunter McCoy
BLAW 300
Section 04
10/20/2017
Reverse Discrimination in Sports
The Effect of Title IX in College Athletics Leading to Reverse Discrimination
Introduction
“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of , or be subjected to discrimination under education program or activity receiving Federal financial assistance.” This is referencing Title IX of the Education Amendments of 1972, what would become the force behind women’s athletics in sport around the country. Within four years of its completion the number of female athletes in the United States increased by 600 percent. This has greatly benefited women for decades in regards to sports and education but there has been a harmful byproduct produced by this achievement and that is reverse discrimination of men due to Title IX regulations. It is something that scholars have been looking into and has been an increasing phenomenon in terms of legislation in recent years. In this paper we will look at the history of Title IX, reverse discrimination case results involving Title IX, the problems with Title IX’s three prong test, and finally we will look at some possible solutions to help make Title IX’s policies more equitable for all that are involved.
History of Title IX
Title IX is an extension to the Civil Rights Act of 1964 and part of the Education Amendments. When Title IX first started there was a good amount of confusion on what exactly is covered under Title IX. Congress answered this question by pass the Civil Restoration Act which stated that Title IX applies to all areas of an educational institution that receives federal funding. There were many complaints from schools so in order to give more clarity on guidelines for how schools could follow through with Title IX The OCR under the Department of Education issued a policy interpretation with three prongs to meet compliance.
(1) Whether intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments; or
(2) Where the members of one sex have been and are underrepresented among intercollegiate athletes, whether the institution can show a history and continuing practice of program expansion which is demonstrably responsive to the developing interest and abilities of the members of that sex; or
(3) Where the members of one sex are underrepresented among intercollegiate athletes, and the institution cannot show a continuing practice of program expansion such as that cited above, whether it can be demonstrated that the interests and abilities of the members of that sex have been fully and effectively accommodated by the present program.
The landmark historical case that set a big precedent for reverse discrimination in Title IX cases was Cohen V. Brown University because it ruled that schools were able to comply with Title IX by cutting men’s team if they were unable to add men’s teams. This decision would set off a devastating chain reaction that would lead to many athletic programs for men to get cut in order to meet Title IX compliance standards.
Reverse Discrimination Case Results Involving Title IX
There have been quite a few cases that have been brought before the court in accordance with men’s athletic opportunities being cut in order to comply with Title IX, however these cases have been unsuccessful. One of the first cases to look at these cases was Kelley v. Board of Trustees. Male student athletes sued due to their swimming team getting eliminated at the University of Illinois. The plaintiffs argued that the proportionality test was a quota system that was the opposite of what Title IX was supposed to be. The court ruled in favor of the school because you cannot claim a Title IX violation if the university reasons with any one of the three prongs in this case they used the substantial proportionality prong. Another case example is Chalenor v University of North Dakota. The plaintiffs claimed that in cutting the men’s wrestling team to comply with Title IX it actually violated Title IX but the courts agreed with the university in that cutting the wrestling team was to avoid discrimination against female athletes. There are numerous more cases with plaintiffs pledging discrimination against them due to the school cutting their sport. However, none have been successful because as long as the school shows that the move was made in order to comply with Title IX it cannot be a discriminatory act.
The Problems with Title IX’s Three Prong Test
Even though Universities are offered three different choices of ways to comply with Title IX the only realistic option is the first prong which is substantial proportionality. The biggest reason for this is due to the budgets of schools athletic programs. In order for a university to expand their programs for women and have a history of that it would take a lot of funds. With funds being low in athletic departments around the country it is impossible for a majority of universities to prove that they have done this. Moving on to the third prong, an university would need to measure the interests and abilities of the members of the sex that have been discriminated against. This is hard to be put in use because there are no guidelines to help assess student interest and also courts have been reluctant to rule or offer clarification. This is why substantial proportionality has been the best way to assess compliance with Title IX. This limitedness that universities face when complying with Title IX is a big factor when looking at reverse discrimination. There are two ways that can be used in order to make sports opportunities proportional to comply with Title IX. Firstly, they can expand women’s programs in order to match the proportionality standard set forth by the student body. This would cost a lot of money, time and resources to pull off. Or the second option is cutting men’s programs to allow for more women’s programs. This option is a cheaper and more effective tool for the university to use and this mindset leads to the elimination of many men’s programs. One of the problems with this is not only their sport cut but students can lose scholarships as well which is their only chance to get an education. Men’s non-revenue sports often get cut because of lack of resources, drain on resources by revenue sports and the uncertainty in satisfying Title IX requirements using a different method than proportionality. Even though most times universities use the proportionality method to comply with Title IX there are some definite issues with the three prong test and more work needs to be done in regards to this.
Possible Solutions to Policies
One of the biggest in the proportionality standard is the difference in required roster sizes between men’s and women’s sports. This is why one of the most prevalent arguments is that football should not count towards proportionality since women have no sport that requires that many people it creates a problem. Another solution could be changing how football is handled in school and downsizing it because it is currently the “fat man tipping canoe” of Title IX and creates a unique problem in gender balance. A third solution would be the NCAA the governing body of college athletes to take a more prominent role in Title IX. Currently as it stands the NCAA requires each member institute to provide a gender equity plan however they do not enforce this much. One of the things they could do would be to have regulations to make sure institutes are compliant with Title IX. Another could be to impose spending limits on revenue generating teams like football and basketball and then allocate that money to expanding programs. The final argument is to use a relative-interest proportionality standard. Under this the ratio of participating student athletes would need to be proportionate to the level of comparative interest in participating in athletics. This argument is supported by evidence suggesting that the general student body is not comparable to the pool from which athletes are drawn.
Conclusion
Title IX has created many opportunities for female athletes over the decades by providing so many more opportunities athletics are closer to equality than ever before. However, there is still much to be improved on in order to have a truly equal system. Senator Birch Bayh, one Title IX’s original sponsors stated “[The elimination of men’s sports] was not the purpose of Title IX. And that has been a very unfortunate aspect of this. The idea of Title IX was not to give fewer opportunities to men; it was to make more opportunities for women.” Title IX started off to end sex discrimination in college athletics and it did a very wonderful job at creating more opportunities for women. However due to the nature at which Title IX is assessed reverse discrimination against men’s sports has occurred as a result. In order for the best possible outcome reform needs to be made in the way compliance with Title IX so that opportunities are always being created but are never being taken away.