A recent article in the student newspaper for the University of Pennsylvania takes the university to task for having the highest disproportionality of athletic opportunities among all of the Ivy League schools. Women at Penn constitute 51% of the student body, yet they receive only 37% of athletic opportunities. Some of this gap is due to the university’s 51-man sprint football squad — a sport for which no female counterpart exists. Tradition dictates that the sport continue, argues the athletic director. But as the article is careful to point out, even without football, Penn’s gender gap would still be wider than that of several Ivy League peers. Moreover, football is not a legally recognized excuse for noncompliance.
To be sure, Penn’s disproportionality is not by itself evidence of a compliance problem. The article describes how the university surveys female students about their interest in sports, suggesting that it likely complies, or is striving to comply, with prong three — an alternative to proportionality that requires universities to demonstrate they are fully satisfying the interests and abilities of the underrepresented sex. Hopefully Penn’s prong three efforts include more than surveying, since OCR clarified in 2010 that interest survey results alone aren’t conclusive of prong three compliance. Part of the reason why this is so is captured in Penn’s survey itself, which asks students what sports they are interested in playing, and whether they have the ability to play them at a Division I level. This obviously skews the survey results away from finding unmet interest and ability, since Division I-caliber athletes don’t usually enroll of their own initiative at institutions where their sport of choice is not already offered. For this reason, OCR requires universities to take a broader look at women’s interests by including evidence of regional and conference popularity of certain sports, which could suggest that, if offered, women would come to play. The article notes that Penn has a “robust” club women’s rugby program, and recommends that Penn consider elevating it to varsity status. Given the gender gap in opportunities as well as Penn’s seemingly vulnerability under prong three, this is definitely a recommendation worth looking in to. And if Penn were to turn down a request for elevation stemming from the rugby team itself, it would have a very hard time defending its compliance with Title IX.