Sadly, it seems that every year, folks use Title IX’s anniversary to trot out tired old arguments that it’s time to “get beyond” Title IX. Because these people obviously don’t read this blog, or they wouldn’t be so misinformed, it seems like an act of futility, on par with spitting in the wind, to address these arguments. However, I shall do my best to correct with facts the myths that belie these claims.
Myth: “Title IX activists” started “pushing for” proportionality in the 1990s.
Fact: It was actually football lobby that proposed a proportionality standard to OCR when it was coming up with its regulatory interpretations in the 1970s. They thought it would be an easier than a 50/50 standard for colleges to meet, because at that time male college students outnumbered women. As Donna Lopiano says, now that women are the majority of college students, “the shoe now pinches.”
Myth: Title IX’s proportionality requirement causes schools to cut men’s sports.
Fact: Title IX gives schools three ways to demonstrate requirement with the law’s requirement for equity in the distribution of athletic opportunities, one of which is proportionality. Basically, the three prongs work to protect women’s sports from being cut when women are the underrepresented sex. Under Title IX, it’s not necessarily unlawful for one sex (almost always men) to have more opportunities than another sex. All Title IX says with regard to cutting opportunities is that schools can’t cut from the sex that had fewer opportunities to begin with. If there was a proportional distribution of opportunities, then Title IX would have no effect on a school’s decision on which teams to cut. It could cut women’s swimming and spare men’s wrestling. What puts schools in the position of only being able to cut men’s teams is the act of favored men with athletic opportunities all along.
Myth: Football funds women’s sports (and therefore, we shouldn’t care if there are men have more athletic opportunities due to football).
Fact: While this may be true at a small number of institutions, most football programs lose money. And football “profits” would be even smaller if schools had to report the true cost of running a program. I hate the argument that profitable sports are somehow more valid in the non-profit sector of education. If colleges want to decide what sports to keep based on commercial standards like profitability, they better be ready to give up their their tax-exempt status and their federal funding.
Myth: Title IX is 38 years old, and the regulatory interpretation that gave us the three prong test is 31 years old.
Fact: Well, this is technically true. But the purpose for which people tend to cite the age of Title IX is usually to suggest that it’s time to repeal the law because it’s done its job. And that’s clearly myth. There are existing disparities in opportunities, support, and scholarships. In college, men still have more athletic opportunities than women — in absolute numbers, not just relative to enrollment. Male athletes still receive $133 million more scholarship dollars than female athletes every year. The other thing that gets covered by references to Title IX’s age is the fact that colleges and universities fought hard to avoid Title IX compliance for much of the 1970s and 1980s, and for much of the 1980s (the Reagan-Bush era) the government was not enforcing the law. It wasn’t until the Supreme Court decided in 1992 that the law allowed private plaintiffs to recover money damages that there litigation posed enough of a threat for schools to take the law seriously. So while Title IX the statute may be 38, in some ways, the law is still a teenager. No wonder it hasn’t reached its full potential yet.