According to CollegeSwimming.com, the Department of Education’s Office for Civil Rights will investigate a complaint filed against the University of Kansas last month, alleging that the University’s failure to offer a men’s swimming and diving team violates Title IX. The complaint, filed by an alumnus who also swam in the 1980 Olympics, specifically alleges that the University violates all three prongs of the three prong test: that men are disproportionately underrepresented in the athletic participation opportunities; that the university does not have a history and continuing practice of expanding athletic opportunities for the underrepresented sex because the last men’s sport added at Kansas was golf, 73 years ago; and that there is unmet interest and ability among the underrepresented sex, as demonstrated in part by a petition to bring back men’s swimming & diving.
According to data submitted by the University and publicly available on the Department of Education’s website, Kansas is a rare example of a university at which men are statistically underrepresented in athletics. The gender breakdown of the student body is very close to 50/50. Yet men receive only 46% of the athletic opportunities. Even though Kansas has a large-roster football team, it only offers a limited number of additional opportunities to men, in sports of track, golf, baseball and basketball. Women have opportunities in basketball, track, golf rowing, soccer, softball, swimming and diving, tennis and volleyball. Two issues will confront OCR in investigating whether this disparity violates the proportionality prong. First, whether Kansas is accurately counting athletic opportunities, as sometimes schools engage in roster management techniques that end up counting less-than-genuine opportunities or engage in tricks like adding students onto the roster after their official numbers are turned in. Assuming that Kansas’s reported numbers are accurate, OCR will then have to figure out whether a 4 percentage point disparity is close enough for “substantial proportionality” required by the test. There is no bright-line test, but OCR has in the pass accepted that five percentage point difference between the percentage of female students and the percentage of female student athletes still constituted substantial proportionality. The fact that this case involves underrepresented male athletes should itself make no difference to OCR’s decision to rely on that particular benchmark.
The other interesting issue OCR’s resolution of this complaint would have to address is whether failing to add a team in 73 years is tantamount to failing to add opportunities for men. Generally, football program rosters have been steadily increasing, and this could constitute evidence of a history and continuing practice of expanding opportunities for the underrepresented sex. Moreover, if men became the underrepresented sex at Kansas only recently, OCR may determine that this prong does not (or not yet?) apply.
In sum, OCR has the opportunity to address many questions about the three-prong test that have only been theoretical possibilities; namely, how the three-prong test applies when the balance of opportunities tips towards women.