Earlier this week, the New York Times reported that more than a few Division I colleges and universities are “cooking the books” in order to remain in compliance with Title IX. In the 1970s, Congress passed important legislation for the purpose of assuring equal educational access and opportunities for men and women. Within that legislation and certainly in the regulations implemented by the Executive Department subsequent to that legislation, Title IX has come to a point where it requires proportional representation for men and women in athletic opportunities. This legislation applies to universities on the basis that they receive Federal funds and it is the threat of cutting off those Federal funds which is the hammer used by the Feds in this area.
Title IX has received less than warm welcome when schools have had to eliminate some men’s sports in order to create funds for women’s teams and in order to make athletic participation between men and women mirror the proportion of their student enrollment. Now, the NY Times says that various colleges and universities are playing games of their own with the counting rules here. The paper claims to have examined the participation statistics of all Division I schools and to have examined the public record documents from a subset of those schools. From those perusals, the NY Times concludes that:
The rosters of some women’s teams at some schools are inflated to include women who may have tried out for the team or participated in the past but who are no longer involved with the team or interested in participation.
Some schools have counted male practice players – - men whose role is to play against the women in practice to provide them with serious competition in practice – - as part of women’s teams.
Let me say perfectly clearly that I absolutely in favor of the goals and objectives of the legislation passed into law regarding equal educational opportunity for men and women at the collegiate level. I also support equal opportunities for men and women in terms of athletic participation but I believe that proportional representation is at best an imperfect yardstick for compliance here.
I think there is a fundamental issue, which brings the athletic interpretation of the meaning of Title IX into conflict with the realities of running an athletic department at major universities. That fundamental issue is – - simply stated – - money.
Athletic Departments and intercollegiate teams cost money to fund scholarships and travel and equipment and coaches and facilities and etc. One of the ways that schools absorb these costs is by generating revenue from some of the sports in the form of ticket sales and television rights fees and memorabilia sales. Taken as a whole, at least 95% of the revenue generated – - that number is an estimate but I believe that it is a conservative estimate – - comes from football and men’s basketball. Therein lies the rub… [/Willie Shakespeare]
Collegiate football teams are the entities that make proportionality very difficult for Title IX compliance. Football teams generate large revenues but football teams require large numbers of men on the roster. The revenue generation is important so schools are loath to eliminate football or to reduce the size of the squads from 90 to 30. At the same time, for a school that is 50% women in terms of enrollment, that means the athletic department needs to come up with women’s teams that provide 90 roster spots for women to keep the balance. Or … the athletic department can come up with 50 roster slots for women and cut out 40 roster slots from existing men’s sports teams other than football. That was how things started out and it is fair to say that not everyone was totally in love with the effects of Title IX on intercollegiate athletics.
Now, it ought not to surprise anyone to learn that when people or institutions need to report numerical data to the Federal Government, some “fudging” can occur. If you doubt that, talk to an IRS auditor… Therefore, the story in the NY Times comes as little surprise to me. From the perspective of a university athletic department, the entire objective here is to take a set of counting rules and skew them as much as one needs to in order to meet the proportionality test. Recall that one university recently wanted to count cheerleading as a sport for the not-so-well-concealed purpose of boosting the level of women’s participation in sports at that university. Here we have men practice players counted as members of a women’s sports team.
I would not pretend to have sufficient competence to provide a legal analysis of Title IX. At the same time, I am 100% certain that when the Congress was debating and passing its legislation it never once considered the issue of men’s practice players being counted as members of a women’s roster. The law as passed must be silent on that specific issue and so the question now is how that squares with the implementing regulations for Title IX. The first reaction I have gotten from people I have asked about this is dismissive; they think there is no possible way that could be justified. Except …
Consider the role of those male practice players. Their “job” is to prepare the women on the team – - the ones who will compete to uphold the glory of good old Whatsamatta U – - to play their best. Those males will never participate in a real game; their role begins and ends in practice sessions. Analogously, there are players on a football team whose “job” is to pretend to be the next opponent for the players who will take the field on Saturday. They are not going to play either – - and they count on the football roster as male participants. [Please do not send me any notes referring to the movie, Rudy, when it comes to men on the scout squad making it to the field on Saturday. I believe that is the exception that proves the rule.]
I think the most clever of the counting rules contortions is the one that counts women participants in sports such as cross-country and track and field to include women who may have had some interest in participation but who have ceased to participate. I can see it now.
The athletic department holds an event where it serves food and drink and provides some kind of concert.
The event is called something like “Women’s Track and Field Promotion”.
Women sign in to get a chit entitling them to free food at a local eatery.
All of those names are then counted as participants in women’s track and field.
Hey, they showed up and signed in for a women’s track and field “event”…
As with any situation where competing interests come into conflict, the intersection of Title IX and intercollegiate athletics will continue to be tumultuous. There is an over-arching principle here that is unassailable; women must have opportunities to participate in sports of their choosing if that opportunity is provided to men. The problem is not finding agreement with the principle; the problem is finding an agreeable way to achieve that end in the cold light of economics – - the dismal science.
It could be worse; it can always be worse. Because the Congress assuredly did not address intercollegiate athletic proportional participation specifically in its legislation, one would have to conclude that Title IX applies to all university activities. Title IX probably also applies to opportunities to play in the school orchestra. Some day, we may see a group of folks – - of either gender here – - try to make the case that they do not have equal access to the cello section of the university orchestra and that Title IX demands proportional opportunities. If you think the counting rules for athletics are contorted, imagine how the orchestral scenario might play out.
But don’t get me wrong, I love sports…