The Free Press, Mankato, MN

June 26, 2012

Time hasn’t ended legal furor over Title IX

By Maureen Hayden
CNHI News Service

— Forty years ago, Congress debated legislation to ban discrimination against women in education while Marissa Pollick fought for the right to play on her Michigan high school tennis team despite a state law barring girls from varsity sports.

It took a court order to overturn the law and allow Pollick to compete. She became a top-ranked tennis player in the state, and because that debate in Washington led to the 1972 equal-rights law known as Title IX, she also became one of the first women to receive an athletic scholarship from the University of Michigan.

But that's only part of the story.

When Pollick arrived on the Michigan campus in 1974, university administrators were at war with the new law. They feared it would divert precious scholarship money and diminish or kill men’s sports.

Title IX mandated equal access to university resources as well as participation in sports. But Michigan's women athletes were often left begging; during Pollick's years as an undergrad, the Michigan women's swim team sold apples outside the football stadium for gas money to travel to their meets.

Pollick said the hostility to the law was evident. As a freshman, she said she won the first of her four varsity letters but instead of getting the much-coveted big block “M” sported by the men, she was handed a cheap knock-off.

"It was so insulting," Pollick recalls now. "It was just another example of how differently we were treated from our male counterparts."

She turned the insult to inspiration. Pollick went on to study law at Michigan and now specializes in suing schools that fail to comply with Title IX.

"After all these years, there are still some school administrators – sometimes all the way up to the university president – who have no intention of complying with the law," Pollick said.

The ‘three-prong’ test

Initially, college officials thought Title IX aimed to achieve equality in admissions for women, especially in the medical and law schools. But athletic directors soon realized the law was also mandating equal spending on athletic benefits, opportunities and scholarships. That was alarming.

At Michigan, where Pollick was witnessing the struggle first-hand, athletic director Don Canham echoed the dire warnings of many of his colleagues: "I do not see how intercollegiate athletics or any form of a scholarship program can continue as we know it," he wrote.

To alleviate the angst, the U.S. Department of Education, charged with enforcing the law, came up with a three-prong Title IX compliance test. It was complicated but charitable. Schools had to meet only one of the guidelines.

They could meet the law's requirements by showing that the number of female athletes was proportional to overall female enrollment; or by demonstrating a history of expanding opportunities for women athletes; or, failing either of those options, proving that they were meeting the athletic interests and abilities of their female students.

Critics complain the last two options have become so difficult to prove, that schools are going with the first option – the proportionality rule. And that, they say, amounts to a quota system that has pushed some schools into eliminating men’s teams rather than expanding sports for women.

Eric Pearson, chairman of the American Sports Council advocacy group, argues that Title IX has led to the "destruction of sports opportunities at the college level." Last year, the council filed a lawsuit seeking to keep Title IX from being applied to high schools, arguing it violated the equal protection clause of the Constitution because it favored female athletes. The lawsuit, like others similar to it, was dismissed.

Title IX supporters argue it's not the law that forces schools to cut their men's sports programs. Former Olympic swimmer Nancy Hogshead-Makar, now senior advocacy director for the Women's Sports Foundation, said school administrators find it more convenient to blame Title IX than to take on the real culprit: high-cost football and men's basketball programs, which eat up a disproportionate amount of sports budgets.

"Schools decide where they spend their money," said Hogshead-Makar. "Often, when they decide to cut some of their men's sports, it's not so they can fund women's sports. It's so they can pump money into football and men's basketball."

The latest data from the National Collegiate Athletic Association shows that on the college level, there are more women's teams than men's. But over the last 30 years, men’s and women’s teams have both risen. Today, there are 186,460 female student-atheletes on 9,660 teams in the NCAA; there are 249,307 male student-athletes on 8,530 teams.

"There are still more opportunities for men than women in sports," asserts Hogshead-Makar.

‘It only happens if you sue’

Some of the toughest critics of Title IX enforcement are the biggest supporters of the law. They argue federal regulators don't do enough to push schools into compliance.

Pollick works with The National Women's Law Center, which filed lawsuits last year against a dozen school districts around the nation, claiming they were noncompliant. Law center officials argue that the U.S. Department of Education's Office for Civil Rights, the Title IX enforcer, has allowed cases of suspected discrimination to linger for years without resolution.

Schools found in violation of Title IX risk losing their federal funds. But that punishment has never been used. More typically, federal regulators ask schools to investigate themselves and come up with a self-prescribed remedy.

"We've had to sue to make progress on Title IX," Pollick said.

In 1991, Brown University students did just that, after their school eliminated funding for the women's gymnastics and volleyball programs. The university cited budgetary constraints; after a federal court ordered reinstatement of the programs, Brown appealed the case, with support from 60 other universities, arguing, in part, it had not violated Title IX because women were less interested in sports than men.

The school lost the case, and the 1996 decision, Cohen v. Brown University, was seen by Title IX supporters as groundbreaking. But it was also costly and polarizing, said Margaret “Digit” Murphy, the women's ice hockey coach who, though afraid for her job, sided with the students and testified against her employer.

"From my perspective, it was just hell," said Murphy, who retired last year as the winningest women's ice hockey coach in NCAA Division I. "It was like a war zone in the athletic department. It was just so uncomfortable and so awkward and, really, just so unnecessary."

Murphy had hoped that the court decision would compel other schools to take a comprehensive and candid look at how they were complying with Title IX. She's doubtful that's happened and fears the gap is widening between sports opportunities for men and those for women.

"Here's the sad thing about Title IX,” she said. “It only happens if you sue."

Problem not ‘going to go away’

Bob Gardner, head of the National Federation of State High School Associations, is using this year’s 40th anniversary of Title IX to encourage schools to embrace the law. The cover story for the May issue of his association's magazine is headlined: “Title IX at 40: More Important Than Ever.” The editorial Gardner penned for the issue urges high school leaders "to promote equity and fairness as a priority in our schools across the country."

Doing so might save schools money and time. The Michigan High School Athletic Association spent a decade embroiled in a Title IX lawsuit before it agreed, in 2009, to change the way it scheduled its girls' and boys' athletic seasons. The association had to pay $6 million in legal fees to the plaintiff, Communities for Equity.

In Indiana, a federal appeals court recently ruled in favor of a high school girls' basketball coach, Amber Parker, who lost her job after she complained about a scheduling disparity that put boys' games into the "prime time" spots on weekends, while relegating the girls' games to weeknights.

The February decision noted that Indiana high school athletic directors had been told 14 years ago by the Office of Civil Rights that the scheduling disparity violated Title IX.

Yet the case isn't over. While Parker won a settlement from her former employer, the group of Indiana schools named as defendants in the case hasn't agreed to implement any changes. A trial is scheduled on their inaction next year.

Parker's attorney, William Groth, said there is still resistance to Title IX, especially when it comes to the thornier issues like gender inequity in game scheduling.

"The fact that a law was passed doesn't mean the problem is going to go away," said Groth.

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Maureen Hayden is the CNHI state reporter in Indianapolis. Contact her at maureen.hayden@indianamediagroup.com.