Title IX: Resuscitating College Athletics During the COVID-19 Pandemic

Pandemic Cuts

As budgets tightened during the coronavirus pandemic, universities sought out ways to decrease spending. One avenue taken by many colleges was to carve sports teams out of their budgets. In doing so, these colleges made themselves vulnerable to claims of Title IX infringements by decreasing women’s access to sports.

Many colleges with expansive varsity athletics programs are beginning to question whether these programs should continue to be a cornerstone of the student experience at their schools. Stanford University funded 36 varsity athletics teams before cutting 11 programs in an effort to reduce spending during the pandemic [1]. Many other universities are implementing similar changes. Should access to collegiate athletics be reigned in to allow for more students who focus solely on academics? And in doing so, would colleges violate Title IX standards by decreasing access to women’s sports? For alumni and athletes frustrated with colleges’ decisions to strip financial support for their teams, alleging Title IX violations is one way to defend a vulnerable athletic program. While colleges grapple with whether athletics should remain an integral part of campus life, supporters of college athletics have gone into overdrive to guard their interests. For women’s teams, this has meant using Title IX requirements to their advantage.

Title IX’s Historical Impact on Women in Sports

Title IX was passed in 1972 to prohibit discrimination on the basis of sex in education programs receiving federal financial aid. When enacted, Title IX made no reference to athletics [2]. After various proposals and debates over gender equality’s place in school sports, Section 844 of Title IX was passed, commonly known as the Javits Amendment. This provision calls for “reasonable regulations for intercollegiate athletic activities considering the nature of the particular sports” [3]. With this expansion, the arena of athletics dramatically changed for women in the United States.

Since the passage of Title IX, female participation in high school sports has increased almost 900%, from around 300,000 girls nationwide in the 1971-1972 school year to over 3 million participating in 2010-2011 [4]. In college athletics, 30,000 female student athletes in the 1971-1972 school year has grown to just shy of 200,000 female athletes participating in the 2010-2011 school year [5]. This increase of over 500% shows how Title IX law has expanded opportunities for women in college sports dramatically. Nonetheless, increased participation is only part of the story.

College and high school athletics provide women with avenues to demonstrate leadership, organization, and dedication. Many studies show that participating in school sports from a young age may even lead to improved academic achievements [6]. Support for women’s sports at the collegiate level inspires many young girls to follow their dreams in the hopes of becoming college athletes and Olympic athletes like their mentors before them. The United States’ impressive support for women in sports since enacting Title IX is noticeable on the world stage. In 2016, American women won 27 Olympic medals, while American men won only 18 [7]. American women won more medals than women from any other country. These feats would not be possible without the legal support offered to female athletes in the United States. Further showing the significance of opportunities to play in collegiate athletics, 85% of American Olympians who medaled in the 2016 Rio Olympic Games participated in college-funded sports [8]. When college administrators are held accountable to gender equality in sports, American women are afforded the opportunity to excel on the world stage.

Title IX Compliance: Three-Pronged Test

After the Javits Amendment was enacted in 1974, it was unclear how colleges would be able to demonstrate compliance in providing equal opportunities in athletic programs for men and women. In 1975, the Office for Civil Rights (OCR), responsible for enforcing Title IX law, released specific regulations determining what the “reasonable provisions” of the Javits Amendment would be. After the 1975 OCR regulation enumerating many factors to evaluate whether equal opportunity existed in intercollegiate athletics, a torrent of Title IX violation complaints came to the US Department of Health, Education and Welfare [9]. To deal with the confusion and the vast number of schools apparently breaking Title IX code under the new guidelines, the OCR attempted again to issue a policy clarification. This 1979 Policy Interpretation created the three-part test still in use today.

Since the 1979 introduction of the three-part test, the OCR has distributed multiple clarification letters, but the gist of the test remains the same [10]. Schools adhere to Title IX guidelines by passing any one of the three tests, and the requirement it meets can change in any given year. The first test a school can use to pass Title IX compliance standards is proportionality: the athletic opportunities available to women and men must be in proportion to their respective rates of enrollment. The second test requires a school to show that it is expanding access to programs for the underrepresented sex (almost always women). The third test requires full accomodation of the underrepresented sex. This means that if there is ample interest and ability to form a team for the underrepresented sex, the school must allow the team to form and must supply it with sufficient funding and support. The three-part test provides the ammunition with which supporters of women’s teams can expand and preserve access to high school and collegiate sports. 

Examining Cases via Arthur Bryant

The career of one famous Title IX sports lawyer — Mr. Arthur Bryant — shows how teams have successfully fought school administrations’ attempts to eliminate athletic programs using Title IX. Mr. Bryant, of the law firm Bailey & Glasser, LLP., has an impressive record of winning cases and settlements for female athletes at universities. In Cohen v. Brown (1996), Mr. Bryant represented Brown University female athletes when the Brown administration demoted four athletic teams from varsity status: women’s gymnastics, women’s volleyball, men’s water polo and men’s golf. Although Brown University believed their actions to be evenly demoting two men’s and two women’s teams, the Rhode Island District Court and Court of Appeals for the First Circuit found that Brown was not in compliance with any prong of the OCR’s test [11]. Brown was forced to reinstate its women’s gymnastics and volleyball teams to varsity status while agreeing to adhere to a Joint Agreement to offer a fixed percentage of varsity opportunities for women in relation to their percentage of the class for an unspecified amount of time [12]. Critics of Title IX law argue that Cohen v. Brown set a precedent that when schools want to cut sports teams to relieve a financial burden, cutting men’s teams is within their legal rights, but cutting women’s teams is not [13]. These critics maintain that Title IX law has created an unnecessary burden on men’s programs, making them the easiest programs to let go when schools are looking to reign in budgets.

When Brown University again made changes to its varsity lineup in 2020, Mr. Bryant was rehired by teams hoping to regain their varsity status. Mr. Bryant found that this time around, administrators used loopholes to push numbers around a page in lieu of complying with Title IX, a practice also known as “roster management”. When Brown administration officials demoted teams from varsity status in 2020 and moved the sailing team up to the varsity level, they believed that they had reached Title IX compliance by counting sailors who competed on the women’s and coed teams twice. However, this double counting of female athletes cannot be used to feign equal opportunities for male and female athletes. In a settlement, Brown agreed to reinstate varsity women’s fencing and equestrian teams while putting a 2024 expiration date on the 1998 Joint Agreement [14]. 

These cases are not unique to Brown University. This year alone, Mr. Bryant has reached major settlements with Dartmouth College, the College of William & Mary, East Carolina University, and the University of North Carolina at Pembroke [15]. At Dartmouth, the administration demoted five teams from varsity status in an effort to cut budget costs [16]. Hired by the women’s swim and dive team and women’s golf team, Mr. Bryant found that Dartmouth had previously remained in compliance with Title IX by meeting the requirement to expand opportunities for the underrepresented sex. However, when Dartmouth cut the women’s swim and dive and golf programs, it no longer remained in compliance with this requirement. When faced with the reality that it had to reinstate the two women’s teams, Dartmouth’s administration decided to reinstate the three men’s teams impacted by the decision as well. 

In a press release after the settlement with Dartmouth College, Mr. Bryant wrote: “Schools need to get the message: Title IX has been the law for almost 50 years. It guarantees women equal opportunities, athletic financial aid and treatment. If schools don’t provide that, the women can sue — and they will win” [17]. In an interview with The Richmond Times-Dispatch, Mr. Bryant noted that most women in college are not motivated to sue their schools, unless the college alters their lives in a dramatic way, such as “when a school eliminates an active, successful women’s team” [18]. Although Mr. Bryant asserts that many colleges are currently in violation of Title IX athletic requirements, few of these colleges ever receive legal complaints. The recent influx of athletic cuts during the COVID pandemic and subsequent legal battles has served as a harsh reminder to many schools of the strength of the legal challenges they may face if they dare to demote women’s teams. 

Conclusion

The extension of Title IX’s protection to varsity sports has given American women myriad opportunities to be leaders, athletes, and teammates. Intercollegiate athletics is an integral part of Title IX’s mission. Colleges looking to cut spending should be wary of taking away athletic opportunities for women. Geared with impressive legal teams and the strength of Title IX, women’s sports teams have forcefully fended off threats to their varsity status during the coronavirus pandemic.

References

[1] “Stanford Athletics Varsity Sport Reductions: FAQ.”

[2] Title IX of the Education Amendments of 1972.

[3]  Title IX of the Education Amendments of 1972.

[4] “2010-2011 High School Athletics Participation Survey.”

[5] Irick, “NCAA Sports Sponsorship and Participation Rates Report.”

[6]  Wretman, “School Sports Participation and Academic Achievement in Middle and High School.”

[7] Longman, “For Those Keeping Score, American Women Dominated in Rio.”

[8] Ibid.

[9] Schwarz, “Timeout! Getting Back to What Title IX Intended.”

[10] Cantu, “Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Test.”

[11] “Settlement Ends Cohen Agreement, Enables Brown to Proceed with Plan to Advance Athletics Competitiveness.”

[12] Ibid.

[13] Schwarz, “Timeout! Getting Back to What Title IX Intended.”

[14] Nash, “Court Approves Settlement to Reinstate Women’s Fencing, Equestrian Teams in Title IX Suit against Brown.”

[15] “Bailey Glasser Title IX Victories.”

[16] Dick, Stern, and Lu, “Dartmouth Reinstates Five Sports Teams, Citing Title IX Compliance.”

[17] Ibid.

[18] O’Connor, “W&M Avoided Title IX Suit, but Owes Nearly $125,000 in ‘Clients’ Costs and Attorneys’ Fees’.”