CHAPTER SIXTEEN

Gender Equity

INTRODUCTION

One of the major issues that intercollegiate athletic directors must factor into their operations is the elements that enable an institution to attain gender equity. The key issue for managers in this area is compliance. Gender equity is often accomplished by means of Title IX, the federal law that requires equal opportunity in school-related athletics. Title IX, enacted in 1972, establishes that: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” The articles and documents contained in this chapter explain what gender equity means, highlight the difficulties managers encounter in achieving it, and discuss the issues the athletics administrator must confront in order to comply. The articles also provide insight on how one sector of insiders can view the effectiveness of these policies.

Title IX is “Exhibit A” for the unique issues that collegiate administrators must grapple with that draw them away from the traditional professional sports and business goals of focusing on the bottom line or even exclusively on winning. Federal law mandates that gender equity be an essential element of the operational equation. This priority can have short- and long-term monetary impacts, particularly during transitional phases as an institution expands through NCAA divisions.

The chapter opens with an excerpt that provides a broad overview of the law related to Title IX in Rosner’s “The Growth of NCAA Women’s Rowing: A Financial, Ethical and Legal Analysis.” Rosner also provides the specifics of the applicability of Title IX in relation to rowing. Rowing is referred to by some as the equivalent of football in terms of the numbers of athletes that participate and the difficulty that it causes in efforts to ensure equality.

The next three documents provide the U.S. government’s interpretation of the law. Insight is gained by looking at various letters interpreting the rules as issued by the United States Department of Education’s Office for Civil Rights (OCR), the federal administrative agency responsible for the oversight of Title IX. Arguably, these documents are the first step in attempting to understand the complexities of Title IX. The federal courts evaluating the merits of Title IX litigation have shown them great deference. The first is “Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Test.” It is this three-part test that determines whether an academic institution is in compliance with Title IX. The OCR later issued additional clarification related to financial aid in a document referred to as the “Letter Clarifying Apportionment of Financial Aid in Intercollegiate Athletics.” The next OCR-produced document is a letter that was designed to provide “Further Clarification of Intercollegiate Athletics Policy Guidance Regarding Title IX Compliance.” This provides the most recent “final word” and guidance to the athletics administrator for Title IX. This letter was issued following contemplation of a report titled “Open to All: Title IX at Thirty,” which was issued by a special commission created by the Secretary of Education to study Title IX 30 years after its passage. The Secretary’s Commission on Opportunities in Athletics was charged to investigate and report back with “recommendations on how to improve the application of the current standards for measuring equal opportunity to participate in athletics under Title IX.” The report was issued in early 2003. The letter included in this chapter from U.S. Assistant Secretary of Education for Civil Rights Gerald A. Reynolds essentially calls for no radical changes. However, it is clear that the guidelines and requirements—although now much more clearly defined—continue to evolve.

The final excerpt, from Rhode and Walker’s article “Gender Equity in College Athletics: Women Coaches as a Case Study,” provides a clear look at the impact of Title IX after 35 years via the results of an extensive survey of 450 coaches of women’s intercollegiate sports.

OPERATIONAL ISSUES

THE GROWTH OF NCAA WOMEN’S ROWING: A FINANCIAL, ETHICAL, AND LEGAL ANALYSIS

Scott R. Rosner

….

III.  LEGAL ASPECTS

A  History of Title IX

Title IX of the Education Amendments of 1972 is a federal law prohibiting sex discrimination in education programs and activities receiving or benefiting from federal funding.⁷⁰ While not specifically mentioned in the law itself, athletics are covered by Title IX.⁷¹ Consequently, this law has been the primary method by which women have achieved equal opportunity in high school and college athletics, and it has played a vital role in opening competition to female athletes.⁷² Though signed into law on June 23, 1972,⁷³ the Department of Health, Education and Welfare’s final Title IX regulations⁷⁴ did not go into effect until July 21, 1975, and were not enforced until the three-year compliance period expired in 1978.⁷⁵ In order to clarify the requirements of Title IX and to provide schools with guidance on their obligations under the law, the Office for Civil Rights (OCR) issued its final Policy Interpretation on December 11, 1979.⁷⁶ This outlines a detailed set of standards to be adhered to in three separate areas: student interests and abilities, athletic benefits and opportunities, and athletic financial assistance.⁷⁷

Though the Policy Interpretation is not a rule of law, it has been given substantial deference by courts determining the rights of female athletes.⁷⁸ After the period of enforcement that followed the issuance of the Policy Interpretation, female athletes suffered a setback when athletic programs were removed from coverage under Title IX by Grove City v. Bell.⁷⁹ As a result of this judicial setback, OCR immediately cancelled all forty of its ongoing Title IX athletics investigations and ignored any new complaints regarding athletics.⁸⁰ Congress acted rather quickly to correct the narrowing of Title IX that Grove City had accomplished and enacted the Civil Rights Restoration Act in 1988,⁸¹ overriding a veto by President Reagan.⁸² The Act served the purpose of reversing the Supreme Court’s decision in Grove City by stipulating that Title IX applies to all programs of an educational institution that receive any federal financial assistance.⁸³ The revitalization of Title IX was fortified by the Supreme Court’s decision in Franklin v. Gwinnett County Public Schools,⁸⁴ which allowed private plaintiffs to receive monetary damages and attorney fees for an intentional violation of Title IX.⁸⁵

In addition to these agency regulations and legislative and judicial statements, Title IX has been shaped by three other policy documents issued by OCR:⁸⁶ the Title IX Investigator’s Manual;⁸⁷ the Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Test;⁸⁸ and a letter offering guidance regarding the issuance of athletics scholarships.⁸⁹ … [Ed. Note: See these two latter documents beginning on p. 622.]

B.  Analysis and Application of Title IX to Women’s Rowing

1.  Student Interests and Abilities

As previously mentioned, compliance with Title IX is measured in three separate areas: student interests and abilities, athletic benefits and opportunities, and athletic financial assistance.⁹⁰ Under Title IX, the athletic interests and abilities of male and female students must be equally and effectively accommodated.⁹¹ OCR will assess whether an institution is in compliance with this aspect of Title IX through the application of the following three-part test:

(1)  Whether intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments; or

(2)  Where the members of one sex have been and are underrepresented among intercollegiate athletes, whether the institution can show a history and continuing practice of program expansion which is demonstrably responsive to the developing interest and abilities of the members of that sex; or

(3)  Where the members of one sex are underrepresented among intercollegiate athletes, and the institution cannot show a continuing practice of program expansion such as that cited above, whether it can be demonstrated that the interests and abilities of the members of that sex have been fully and effectively accommodated by the present program.⁹²

An institution may choose any one of the three benchmarks established by this test in order to satisfy the accommodation requirement.⁹³ OCR also considers the quality of competition available to members of both sexes,⁹⁴ but it is this three-part test that has been the most litigated aspect of Title IX in determining whether the interests and abilities of an institution’s students are effectively accommodated.⁹⁵

Under part one of the three-part test, OCR looks at whether an institution’s participation opportunities for its male and female students are substantially proportionate to their full-time undergraduate enrollments.⁹⁶ Although OCR will find that an institution with a closely mirrored image between these two figures is effectively accommodating the interests and abilities of its students, very few institutions have been able to take advantage of this “safe harbor.”⁹⁷ In 1997, only fifty-one institutions in NCAA Division I were within even five percentage points of achieving substantial proportionality.⁹⁸ For many institutions, this is due to the presence of football. The number of participation opportunities in football is unmatched by any other sport.⁹⁹ An institution would typically have to sponsor at least three women’s teams in order to match the number of athletes on a football team.¹⁰⁰ Thus, it becomes extremely difficult for an institution sponsoring a Division I-A football team to comply with the first benchmark.¹⁰¹

The growth of women’s rowing in the NCAA is primarily attributable to its positive impact on institutions attempting to comply with the interests and abilities aspect of Title IX via the substantial proportionality test.¹⁰² The large roster size of a women’s rowing team has made it an extremely attractive alternative for athletic administrators looking to increase the number of participation opportunities afforded to an institution’s female students.¹⁰³ The average roster size of a women’s rowing team is the largest of any NCAA women’s sport—nearly twice that of outdoor track and field, which has the second largest roster of any women’s sport.¹⁰⁴ It is not uncommon for a crew to have 100 rowers.¹⁰⁵ Therefore, rowing is “women’s football” in terms of roster size. It is a “quick fix” for institutions looking to offer substantially proportionate athletic opportunities to its female students.

While the first benchmark has been the focus of both litigants and courts, the dearth of institutions satisfying this test requires that attention be given to part two of the three-part test of Title IX compliance—whether an institution has a history and continuing practice of program expansion for the underrepresented sex. OCR reviews an institution’s previous and ongoing remedial efforts to determine its compliance with this benchmark.¹⁰⁶ Of primary importance is ascertaining whether an institution has expanded its program over time in a manner that is demonstrably responsive to the developing interests of the underrepresented sex.¹⁰⁷ To do so, OCR will review if the school has added or elevated women’s teams to intercollegiate status, added participation opportunities for female athletes, and its responses to female students’ requests to add or elevate sports.¹⁰⁸ In determining whether an institution has a continuing practice of program expansion that is demonstrably responsive to the developing interests of the underrepresented sex, OCR looks to whether the institution has effectively communicated to students a procedure for requesting the addition or upgrading of a sport.¹⁰⁹ In addition, the current implementation of an institution’s plan to expand an underrepresented program is viewed favorably by OCR.¹¹⁰ In Boucher v. Syracuse University,¹¹¹ the court held that the institution’s addition of women’s lacrosse, soccer, and softball between 1996 and 1999 was evidence that it had a history and continuing practice of program expansion for its female athletes.¹¹² Syracuse University is the first … institution to successfully rely on this benchmark in proving its compliance with Title IX.¹¹³

Women’s rowing is beneficial to those institutions choosing to comply with the second benchmark. The tremendous growth of the sport at the intercollegiate level allows those schools that have recently begun to sponsor it to claim a history of program expansion.¹¹⁴ The addition or elevation of a women’s rowing team, and the numerous participation opportunities added for female athletes via the sport, will be evaluated positively by OCR.¹¹⁵ At those institutions that have added or elevated the sport upon the request of its students, the affirmative response will receive similar approval from OCR.¹¹⁶ The large number of NCAA institutions that are able to make these claims because of women’s rowing is reflected in the sport becoming the first to move from Emerging to Championship status.¹¹⁷ In addition, there are several institutions that have announced plans to add or elevate a women’s rowing team in the near future.¹¹⁸ These institutions may claim a continuing practice of program expansion through their implementation of a plan to add the sport.

In part three of the three-part test, an institution may claim that it is fully and effectively accommodating the interests and abilities of its female students even though it has neither achieved substantial proportionality nor demonstrated a history and continuing practice of program expansion.¹¹⁹ In reviewing this claim, OCR evaluates whether there is unmet interest in a particular sport, sufficient ability to sustain a team in the sport, and a reasonable expectation of competition for a team.¹²⁰ First, OCR looks at several indicators to determine whether there is unmet interest in a particular sport at an institution.¹²¹ These indicators include whether the institution has been requested to add or elevate a particular sport by its current or admitted students; participation in a particular club or intramural sport at the institution; participation in certain interscholastic sports by admitted students; and sports participation rates in the high schools, amateur athletic groups, and community sports leagues in the areas from which an institution draws most of its students.¹²² Second, OCR looks at the potential ability of either an existing club team or interested students to evaluate if there exists a sufficient ability to sustain an intercollegiate team in the sport.¹²³ Third, OCR reviews if there is a reasonable expectation of intercollegiate competition available for a team in both the institution’s conference and surrounding geographic area.¹²⁴ If there is unmet interest in a particular sport, sufficient ability to sustain a team in the sport, and a reasonable expectation of competition for a team, then the institution has not fully and effectively accommodated the interests and abilities of its female students.¹²⁵

Women’s rowing may or may not help an institution satisfy the third benchmark of Title IX compliance. There are many strong club teams at the college level.¹²⁶ If one of them requests elevation to the intercollegiate level, and the institution is located in an area with a high participation rate at both the high school and intercollegiate levels, then the institution could not refuse to elevate the women’s rowing team and still claim that it is fully and effectively accommodating the interests and abilities of its female students.¹²⁷ This is due to the fact that all three compliance requirements would have been met by the women’s rowing team.¹²⁸ However, there are several potential problems with this analysis that may allow an institution faced with a request to add a women’s rowing team to refuse to do so with no Title IX impunity. There is likely to be a paucity of feeder rowing programs in many institutions’ normal recruiting area, as there are so few club and high school programs throughout the country.¹²⁹ Depending on the geographic location of the institution and its conference affiliation, there may not be a reasonable expectation of intercollegiate competition in the institution’s vicinity.¹³⁰ Thus, there would be no unmet interest or reasonable expectation of competition. Under these circumstances, the institution could claim that it is fully and effectively accommodating the interests and abilities of its female students without adding a rowing team.

2.  Athletic Benefits and Opportunities

The second area of concern for Title IX compliance is the parity of athletic benefits and opportunities between male and female students.¹³¹ Though only one court has issued a decision addressing these requirements at the intercollegiate level thus far, they are an important aspect of Title IX compliance that are likely to be the future focus of the courts.¹³² In addition to looking at student interests and abilities, the law specifies that OCR examine other factors in determining whether there is equal opportunity in athletics.¹³³ The Policy Interpretation requires the following factors to be considered in determining whether an institution is providing equality in athletic benefits and opportunities: provision and maintenance of equipment and supplies; scheduling of games and practice times; travel and per diem expenses; opportunity to receive coaching and academic tutoring; assignment and compensation of coaches and tutors; provision of locker rooms and practice and competitive facilities; provision of medical and training services and facilities; provision of housing and dining services and facilities; publicity; provision of support services; and recruitment of student athletes.¹³⁴ Each of these factors is evaluated by comparing an institution’s entire male and female athletic program with respect to the availability, quality and kinds of benefits, opportunities, and treatment afforded.¹³⁵ While identical benefits, opportunities and treatments are not required, the effects of any differences must be negligible.¹³⁶

The impact of women’s rowing on any one particular aspect of this area of Title IX compliance is relatively small. However, any inequity in the women’s rowing program is magnified because of the large number of participation opportunities provided by the sport.¹³⁷ Because a significant percentage of the female athletes at an institution may be rowers, the impact of women’s rowing on this area may be considerable.¹³⁸ Of primary concern is the effect of women’s rowing on the provision and maintenance of equipment and supplies, scheduling of games, and the construction of practice and competitive facilities.¹³⁹

Perhaps the most compelling of these components are equipment and supplies.¹⁴⁰ The quality of equipment offered to both male and female athletes must be similar.¹⁴¹ However, the cost of the equipment used in women’s rowing is quite high.¹⁴² As a result, many institutions opt to purchase used equipment to lower their expenses, especially when beginning a program.¹⁴³ If a women’s rowing program is using inferior equipment for a sustained period of time, the institution may encounter difficulty establishing compliance with this component. The amount of equipment provided to male and female athletes also must be similar.¹⁴⁴ It seems logical to expect that there should be enough equipment to ensure that all members of a team will be able to practice at the same time. Providing enough boats for the entire team to be on the water at the same time becomes an expensive proposition for a rowing team. Due to this expense, many institutions have opted not to purchase a sufficient number of rowing shells; the rowers must “take turns” on the water.¹⁴⁵ Institutions engaging in this practice may find it similarly difficult to prove compliance with this component.

One of the ways in which the maintenance of equipment and supplies is measured is by how equipment is repaired.¹⁴⁶ Men’s and women’s teams should have their equipment repaired in the same manner.¹⁴⁷ If there is a professional equipment manager, repairs should be done for a similar number of men’s and women’s teams.¹⁴⁸ The specialized nature of rowing requires a trained individual to repair and maintain the equipment.¹⁴⁹ While some institutions employ either a part-time or full-time rigger, in many cases these repair duties are the responsibility of the coach. This may be a compliance problem for an institution, because its equipment repair policy may result in inequality between the men’s and women’s teams. Replacement of equipment typically must be done on the same schedule for men’s and women’s teams unless there is a difference justified by the nature of the sport.¹⁵⁰ While rowing may be of a sufficiently unique nature to justify a different replacement schedule, this difference must not cause an inequity between male and female athletes if the institution wishes to remain in compliance with Title IX.¹⁵¹ The expense of purchasing new rowing equipment is likely to make it tempting for athletic administrators to delay this transaction. Nevertheless, administrators must not shy away from replacing old rowing equipment because of the expense involved if it results in inequitable treatment of female athletes.

Compliance with Title IX also implicates the procedures adopted by an institution for scheduling games and practice time for the women’s rowing team.¹⁵² The time of day during which competitive events and practices are scheduled should be equally convenient for the men’s and women’s teams.¹⁵³ Since most regattas are scheduled on weekends, the women’s rowing team facilitates an institution’s compliance with this component.

Women’s rowing impacts upon the provision of practice and competitive facilities as well.¹⁵⁴ Practice and competitive facilities must be of equivalent quality and availability.¹⁵⁵ The assignment of a women’s team to a poorer quality facility is a common compliance problem.¹⁵⁶ This is manifested in the sport of women’s rowing by the type of boathouse facility used by many crews. Construction or renovation of a boathouse is a very expensive proposition.¹⁵⁷ Instead of engaging in such a project when adding or elevating a women’s rowing team, many institutions choose to look at alternatives to incurring these large capital expenses. The institution may enter into a rental agreement with an existing boathouse or utilize an older boathouse that was previously used by the institution’s men’s or women’s club rowing team. If these options prove unattractive, the institution may store equipment in a semi-trailer in close proximity to the practice water¹⁵⁸ or simply transport equipment to and from the institution to the practice water on boat trailers every day.¹⁵⁹ Engaging in these practices may make it extremely difficult for an institution to comply with this component; the poor quality of many of these facilities likely creates an inequity between male and female athletes. The availability of practice facilities involves the scheduling and location of these facilities. The location of the practice facility is of concern if the facility for a team of one sex is off campus and in an inconvenient location.¹⁶⁰ Most boathouses fit this description, as they tend to be located some distance from campus.¹⁶¹ While the nature of the sport may justify some inconvenience in the availability of the practice facility, the institution should attempt to minimize this burden as much as possible so as to reduce any inequities between male and female athletes.

3. Athletic Financial Assistance

The final area of concern for Title IX compliance is athletic financial assistance.¹⁶² Though only 46 institutions are in compliance,¹⁶³ this area has also received little judicial attention.¹⁶⁴ None of the three courts that have reviewed cases involving athletic financial assistance has found a violation of Title IX.¹⁶⁵ OCR presumes compliance in this area if the total amount of athletic scholarship dollars awarded to male and female athletes is within one percent of their respective participation rates in intercollegiate athletics at the institution.¹⁶⁶ Women’s rowing may play an important role in an institution’s compliance with this standard due to the large number of athletic scholarships that can be awarded. The NCAA allows for the equivalent of twenty full athletic scholarships to be awarded in women’s rowing.¹⁶⁷ This is the largest of any women’s sport.¹⁶⁸ When all sports are taken into consideration, only football offers more scholarships.¹⁶⁹ Thus, the presence of a women’s rowing team is the single greatest ally to an institution hoping to comply with the athletic financial assistance standard established by OCR.

Notes

….

70.  20 U.S.C. 1681 provides in relevant part that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance….”

71.  See 34 C.F.R. 106.41 (1975).

72.  Masteralexis, supra note 16, at 184.

73.  History of Title IX Legislation, Regulation and Policy Interpretation, at bailiwick.lib.uiowa.edu/ge/history.html (last visited May 24, 1999).

74.  34 C.F.R. 106.41 (1975).

75.  Id.

76.  The Office for Civil Rights within the U.S. Department of Education is responsible for the enforcement of Title IX. Letter from Dr. Mary Francis O’Shea, National Coordinator for Title IX Athletics, Office for Civil Rights, to Nancy Foster, General Counsel, Bowling Green State University (July 23, 1998), available at bailiwick.lib.uiowa.edu/ge/.

77.  44 Fed. Reg. 71413 (1979). See also Requirements Under Title IX, supra note 12. These requirements will be discussed further in Part III.B infra.

78.  See Robert D’Augustine, A Loosely Laced Buskin?: The Department of Education’s Policy Interpretation For Applying Title IX To Intercollegiate Athletics, 6 Seton Hall J. Sport L. 469, 473-80 (1996).

79.  465 U.S. 555 (1984). The Supreme Court limited the application of Title IX to programs or activities that received direct federal financial assistance. See id. As most athletic departments do not receive such direct funding, they were removed from coverage under Title IX.

80.  History of Title IX Legislation, Regulation and Policy Interpretation, supra note 73.

81.  Pub. L. No. 100-259, 102 Stat. 28 (1988) (codified at 20 U.S.C. 1687).

82.  History of Title IX Legislation, Regulation and Policy Interpretation, supra note 73.

83.  Id.

84.  503 U.S. 60 (1992).

85.  Id.

86.  Valerie Bonnette, Title IX Basics, available at www.ncaa.org/library/general/achieving_gender_equity/ (n.d.).

87.  Valerie Bonnette and Lamar Daniel, Office for Civil Rights, Title IX Investigator’s Manual (1990).

88.  Office for Civil Rights, Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Test, January 16, 1996, available at www.ncaa.org/library/general/achieving_gender_equity/ [hereinafter 1996 Clarification Letter].

89.  1998 Guidance Letter, supra note 76.

90.  44 Fed. Reg. 71413 (1979), See also Requirements Under Title IX, supra note 12.

91.  Requirements Under Title IX, supra note 12.

92.  44 Fed. Reg. 71418 (1979).

93.  1996 Clarification Letter, supra note 88, at II-25.

94.  Id.

95.  See e.g., Cohen v. Brown Univ., 991 F.2d 888 (1st Cir. 1993); Boucher v. Syracuse Univ., 164 F.3d 113 (2d Cir. 1999); Pederson v. La. State Univ., 201 F.3d 388 (5th Cir. 2000).

96.  1996 Clarification Letter, supra note 88, at II-26. In doing so, OCR considers only the actual number of participants in intercollegiate athletics, including the walk-ons who make a squad and practice but do not compete. Id. OCR excludes intramural sports and any unfilled roster slots from this calculation. Id. An individual who quits after two weeks of practice is not counted as a participant. Bonnette, supra note 86. Women’s rowing has a high attrition rate because of the demanding nature of the sport. See Brett Johnson, A Look at the University of Louisville’s First Year (Part II), USRowing, June 2000, at 21-23 [hereinafter Johnson (Part II)]. A large number of individuals who attend practices in the preseason quit the sport before the competitive schedule begins; these individuals are not counted as participants. See id. Thus, the number of participation opportunities provided by women’s rowing is somewhat limited because of its difficulty.

97.  See Gender Equity Creative Solutions; A Case Study of What Education Institutions Can Do In Order To Comply With The Regulations of Title IX, at www.womenssportsfoundation.org (last visited May 12, 2000). Less than 9% of Division I institutions are able to do so. Id. An example is often helpful in understanding this aspect of the law. An institution with 10,000 full-time undergraduate students - 5200 women and 4800 men - must offer 52% of its participation opportunities in intercollegiate athletics to women to be in strict compliance with part one. See 1996 Clarification Letter, supra note 88. OCR makes the determination of whether an institution is in compliance with part-one on a case-by-case basis, as there is no strict statistical cut-off for a finding of substantial proportionality. See id.

98.  Chronicle of Higher Education, Participation: Proportion of Female Students on Athletic Teams, athttp://www.chronicle.com/search97cgi/s97_cgi (last visited Jan. 19, 2001).

99.  See NCAA, 1998–99 Participation Study—Men’s Sports (2000), available at http://www.ncaa.org/participation_rates/1998-99_m_partrates.pdf (last visited May 16, 2000). The average roster size for football is 113.4 in Division I-A and 92.7 in Division I-AA. Id.

100.  Brewington, supra note 1.

101.  See Chronicle of Higher Education, Participation: Proportion of Female Students on Athletic Teams, supra note 98. Only 18 institutions in Division I-A and 20 institutions in Division I-AA were within five percentage points of achieving substantial proportionality. Id.

102.  Carton, supra note 59.

103.  Brewington, supra note 1.

104.  1998-99 Participation Study, supra note 10.

105.  Wallace, supra note 9.

106.  1996 Clarification Letter, supra note 88, at II-27. An institution cannot meet the requirements of part two simply by cutting men’s teams or participation opportunities. Id. Nor can a school cut women’s teams or participation opportunities without replacing them with additional teams or opportunities. Id. “Part two considers an institution’s good-faith remedial efforts through actual program expansion.” Id.

107.  See supra note 92 and accompanying text.

108.  1996 Clarification Letter, supra note 88, at II-28. While no definitive time frame is mentioned by OCR, it is clear that the addition or elevation must be relatively recent. See id.

109.  1996 Clarification Letter, supra note 88, at II-28.

110.  Id. Mere promises to expand the program do not suffice. Id.

111.  164 F.3d 113 (2d Cir. 1999).

112.  Id. at 119.

113.  Carol Barr, Still Afloat, Athletic Business, Oct. 1999, at 26-28.

114.  This takes the form of an addition of a women’s team at those institutions where there was no club team prior to the formation of an intercollegiate women’s rowing team; at institutions that upgrade a club team to the intercollegiate level, the decision is considered an elevation. See 1996 Clarification Letter, supra note 88, at II-28.

115.  See 1996 Clarification Letter, supra note 88, at II-28.

116.  Id. Any institution doing so may also be able to claim that it has a continuing practice of program expansion if it had a policy or procedure in place for requesting the addition or upgrading of sports that was effectively communicated to students. Id.

117.  See supra note 42 and accompanying text.

118.  Jeff Metcalfe, ASU Wet Behind Ears But Aims to be Water Power, The Arizona Republic, Sept. 8, 1999, at C1. Arizona State University will add a rowing team in 2001–02. Id.

119.  1996 Clarification Letter, supra note 88, at II-29. This includes students who have been accepted but are not yet enrolled at the institution. Id.

120.  1996 Clarification Letter, supra note 88, at II-29. An institution that has recently eliminated a viable intercollegiate women’s team is highly unlikely to satisfy part three. Id.

121.  Id.

122.  Id.

123.  Id.

124.  1996 Clarification Letter, supra note 88, II-30-31.

125.  Id. at II-30.

126.  American Rower’s Almanac, supra note 3, at 489-94.

127.  See Bonnette, supra note 86.

128.  See id. “Compliance with this third method is unlikely if there is a sport not currently offered to the underrepresented sex for which there is sufficient competition in the institution’s normal competitive regions and; a club team; and/or significant participation at high schools in the institution’s normal recruitment area; and/or substantial intramural participation.” Id.

129.  See supra note 3 and accompanying text.

130.  See supra notes 53-54 and accompanying text.

131.  44 Fed. Reg. 71413 (1979).

132.  See Cook v. Colgate Univ., 802 F. Supp. 737 (N.D.N.Y. 1992), vacated as moot, 992 F.2d 17 (2d Cir. 1993) (College women’s hockey team established a prima facie Title IX violation by coming forth with evidence that the university had provided significantly superior funding and equipment to the men’s team).

133.  44 Fed. Reg. 71413 (1979).

134.  Id.

135.  Id.

136.  Id.

137.  See supra notes 103-05 and accompanying text. This is especially important given that the analysis of compliance with Title IX often focuses on whether the equivalent quality and quantities of benefits and services are provided to equivalent percentages of female and male athletes. See Bonnette, supra note 86. Many athletic administrators focus on comparing similar sports with each other for the purpose of this area of analysis, as they find that it is the easiest method by which to ensure compliance. See id. at II-2. Football creates a problem for these administrators because it is usually afforded better benefits than any other sport, yet does not have a similar women’s sport to provide a basis for comparison. See id. at II-3. Thus, the administrators must provide “football-like” benefits to several sports in order to be in compliance with this area. See id. Although the sports are dissimilar in nature, football and women’s rowing are similar in the number of participation opportunities that they provide; this allows for an easier comparison between men’s and women’s athletics and, therefore, facilitates compliance with this area of Title IX. See generally id. at II-9-24. Even this comparison is not flawless; it is likely that football will still receive greater benefits in areas such as compensation of coaches, medical and training services, publicity, recruitment, and support services. However, the institution has available numerous justifications for the differences in the provisions of these services. See generally, Bonnette, supra note 86, at II-9-24.

138.  See supra notes 103-05 and accompanying text.

139.  See 44 Fed. Reg. 71414 (1979). See also Fed. Reg. 71416 (1979).

140.  See 44 Fed. Reg. 71414 (1979). “Compliance will be assessed by examining, among other factors, the equivalence for men and women of: (1) the quality of equipment and supplies; (2) the amount of equipment and supplies; (3) the suitability of equipment and supplies; (4) the maintenance and replacement of the equipment and supplies; and (5) the availability of equipment and supplies.” Id.

141.  See id.

142.  The specific equipment costs are discussed at length…

143.  See infra…

144.  See 44 Fed. Reg. 71414 (1979).

145.  See Hale, supra note 52.

146.  See 44 Fed. Reg. 71414 (1979).

147.  Bonnette, supra note 86, at II-10.

148.  Id.

149.  Sue Rochman, Journey Towards Equity, Athletic Management, June/July 1998, at 23. This individual is referred to as a rigger. Id.

150.  Bonnette, supra note 86, at II-10.

151.  See id.

152.  See 44 Fed. Reg. 71416 (1979). “Compliance will be assessed by examining, among other factors, the equivalence for men and women of: (1) the number of competitive events per sport; (2) the number and length of practice opportunities; (3) the time of day competitive events are scheduled; (4) the time of day practice opportunities are scheduled; and (5) the opportunities to engage in available pre-season and post-season competition.” Id.

153.  See Valerie Bonnette, Title IX Basics, available at www.neaa.org/library/general/achieving_gender_equity/ (n.d.) at II-11.

154.  See 44 Fed. Reg. 71417 (1979). “Compliance will be assessed by examining, among other factors, the equivalence for men and women of: (1) quality and availability of the facilities provided for practice and competitive events; (2) exclusivity of use of facilities provided for practice and competitive events; (3) availability of locker rooms; (4) quality of locker rooms; (5) maintenance of practice and competitive facilities; and (6) preparation of facilities for practice and competitive events.” Id.

155.  Id. There is some flexibility in evaluating this standard depending on the nature of the facility used. See Bonnette, supra note 86, at II-16.

156.  Id.

157.  The specific construction costs are discussed at length…

158.  United States Rowing Ass’n, Women’s Rowing 2 (1995).

159.  Telephone interview with Rob Catloth, Head Women’s Rowing Coach, University of Kansas (June 2, 1999).

160.  Bonnette, supra note 86, at II-17. The scheduling of the boathouse will not be of concern unless there are rental terms that stipulate that the facility only be used by the institution at times that are inconvenient for the athletes. Id.

161.  Johnson (Part II), supra note 96. Louisville’s team travels 43 miles to practice. Id. The rowing team at Robert Morris College practices at a boathouse eighteen miles from campus. Rochman, supra note 149, at 26.

162.  44 Fed. Reg. 71414 (1979) requires that the amounts spent on scholarships be offered on a “substantially proportional basis to the number of male and female participants in the institution’s athletic programs.” Id.

163.  Chronicle of Higher Education, Participation: Proportion of Female Students on Athletic Teams, at http://www.chronicle.com/search97cgi/s97_cgi (last visited Jan. 19, 2001).

164.  See Judith Jurin Semo and John F. Bartos, A Guide to Recent Developments in Title IX Litigation - February 15, 2000, Achieving Gender Equity at III-2, at http://www.ncaa.org/library/general/achieving_gender_equity/ (n.d.) (discussing Gonyo v. Drake Univ., 837 F. Supp. 989 (S.D. Iowa 1993); Beasley v. Ala. State Univ., 3 F. Supp.2d 1325 (M.D. Ala. 1998); Boucher v. Syracuse Univ., 164 F.3d 113 (2d Cir. 1999)).

165.  Id.

166.  1998 Guidance Letter, supra note 76. Therefore, if females constitute 55 percent of the athletes at an institution, then they must receive between 54 and 56 percent of the athletic scholarship dollars awarded by institution. Id. OCR allows variations of larger than one percent under several circumstances, including during the phase-in period for scholarships that are awarded by a new team. Id.

167.  NCAA Manual, supra note 11, 15.5.3.1.2. The NCAA classifies sports into two categories for the purpose of athletic scholarships. Head count sports are those sports in which only full athletic scholarships may be awarded if they are awarded at all. Id. at 15.5.2, 15.5.4, 15.5.5. In Division I, football, men’s basketball, and women’s basketball, gymnastics, tennis, and volleyball are head count sports. Equivalency sports are sports in which partial athletic scholarships may be awarded. All other NCAA sports are equivalency sports. Id. at 15.5.3.

168.  Id.

169.  NCAA Manual, supra note 11, 15.5.5.1, 15.5.5.2. A football team in Division I-A may award 85 scholarships, while a team in Division I-AA may offer the equivalent of 63 scholarships to 85 individuals. Id.

LEGAL FRAMEWORK

CLARIFICATION OF INTERCOLLEGIATE ATHLETICS POLICY GUIDANCE: THE THREE-PART TEST (JANUARY 16, 1996)

United States Department of Education, Office for Civil Rights

The Office for Civil Rights (OCR) enforces Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. (Title IX), which prohibits discrimination on the basis of sex in education programs and activities by recipients of federal funds. The regulation implementing Title IX, at 34 C.F.R. Part 106, effective July 21, 1975, contains specific provisions governing athletic programs, at 34 C.F.R. § 106.41, and the awarding of athletic scholarships, at 34 C.F.R. § 106.37(c). Further clarification of the Title IX regulatory requirements is provided by the Intercollegiate Athletics Policy Interpretation, issued December 11, 1979 (44 Fed. Reg. 71413 et seq. (1979)).*

The Title IX regulation provides that if an institution sponsors an athletic program it must provide equal athletic opportunities for members of both sexes. Among other factors, the regulation requires that an institution must effectively accommodate the athletic interests and abilities of students of both sexes to the extent necessary to provide equal athletic opportunity.

The 1979 Policy Interpretation provides that as part of this determination OCR will apply the following three-part test to assess whether an institution is providing nondiscriminatory participation opportunities for individuals of both sexes:

Thus, the three-part test furnishes an institution with three individual avenues to choose from when determining how it will provide individuals of each sex with nondiscriminatory opportunities to participate in intercollegiate athletics. If an institution has met any part of the three-part test, OCR will determine that the institution is meeting this requirement.

It is important to note that under the Policy Interpretation the requirement to provide nondiscriminatory participation opportunities is only one of many factors that OCR examines to determine if an institution is in compliance with the athletics provision of Title IX. OCR also considers the quality of competition offered to members of both sexes in order to determine whether an institution effectively accommodates the interests and abilities of its students.

In addition, when an “overall determination of compliance” is made by OCR, 44 Fed. Reg. 71417, 71418, OCR examines the institution’s program as a whole. Thus, OCR considers the effective accommodation of interests and abilities in conjunction with equivalence in the availability, quality, and kinds of other athletic benefits and opportunities provided male and female athletes to determine whether an institution provides equal athletic opportunity as required by Title IX. These other benefits include coaching, equipment, practice and competitive facilities, recruitment, scheduling of games, and publicity, among others. An institution’s failure to provide nondiscriminatory participation opportunities usually amounts to a denial of equal athletic opportunity because these opportunities provide access to all other athletic benefits, treatment, and services.

This Clarification provides specific factors that guide an analysis of each part of the three-part test. In addition, it provides examples to demonstrate, in concrete terms, how these factors will be considered. These examples are intended to be illustrative, and the conclusions drawn in each example are based solely on the facts included in the example.

THREE-PART TEST—PART ONE: ARE PARTICIPATION OPPORTUNITIES SUBSTANTIALLY PROPORTIONATE TO ENROLLMENT?

Under part one of the three-part test (part one), where an institution provides intercollegiate level athletic participation opportunities for male and female students in numbers substantially proportionate to their respective full-time undergraduate enrollments, OCR will find that the institution is providing nondiscriminatory participation opportunities for individuals of both sexes.

OCR’s analysis begins with a determination of the number of participation opportunities afforded to male and female athletes in the intercollegiate athletic program. The Policy Interpretation defines participants as those athletes:

OCR uses this definition of a participant to determine the number of participation opportunities provided by an institution for purposes of the three-part test.

Under this definition, OCR considers a sport’s season to commence on the date of a team’s first intercollegiate competitive event and to conclude on the date of the team’s final intercollegiate competitive event. As a general rule, all athletes who are listed on a team’s squad or eligibility list and are on the team as of the team’s first competitive event are counted as participants by OCR. In determining the number of participation opportunities for the purposes of the interests and abilities analysis, an athlete who participates in more than one sport will be counted as a participant in each sport in which he or she participates.

In determining participation opportunities, OCR includes, among others, those athletes who do not receive scholarships (e.g., walk-ons), those athletes who compete on teams sponsored by the institution even though the team may be required to raise some or all of its operating funds, and those athletes who practice but may not compete. OCR’s investigations reveal that these athletes receive numerous benefits and services, such as training and practice time, coaching, tutoring services, locker room facilities, and equipment, as well as important non-tangible benefits derived from being a member of an intercollegiate athletic team. Because these are significant benefits, and because receipt of these benefits does not depend on their cost to the institution [or] whether the athlete competes, it is necessary to count all athletes who receive such benefits when determining the number of athletic opportunities provided to men and women.

OCR’s analysis next determines whether athletic opportunities are substantially proportionate. The Title IX regulation allows institutions to operate separate athletic programs for men and women. Accordingly, the regulation allows an institution to control the respective number of participation opportunities offered men and women. Thus, it could be argued that to satisfy part one there should be no difference between the participation rate in an institution’s intercollegiate athletic program and its full-time undergraduate student enrollment.

However, because in some circumstances it may be unreasonable to expect an institution to achieve exact proportionality—for instance, because of natural fluctuations in enrollment and participation rates or because it would be unreasonable to expect an institution to add athletic opportunities in light of the small number of students that would have to be accommodated to achieve exact proportionality—the Policy Interpretation examines whether participation opportunities are “substantially” proportionate to enrollment rates. Because this determination depends on the institution’s specific circumstances and the size of its athletic program, OCR makes this determination on a case-by-case basis, rather than through use of a statistical test.

As an example of a determination under part one: If an institution’s enrollment is 52 percent male and 48 percent female and 52 percent of the participants in the athletic program are male and 48 percent female, then the institution would clearly satisfy part one. However OCR recognizes that natural fluctuations in an institution’s enrollment and/or participation rates may affect the percentages in a subsequent year. For instance, if the institution’s admissions the following year resulted in an enrollment rate of 51 percent males and 49 percent females, while the participation rates of males and females in the athletic program remained constant the institution would continue to satisfy part one because it would be unreasonable to expect the institution to fine tune its program in response to this change in enrollment.

As another example, over the past five years an institution has had a consistent enrollment rate for women of 50 percent. During this time period, it has been expanding its program for women in order to reach proportionality. In the year that the institution reaches its goal—i.e., 50 percent of the participants in its athletic program are female—its enrollment rate for women increases to 52 percent. Under these circumstances, the institution would satisfy part one.

OCR would also consider opportunities to be substantially proportionate when the number of opportunities that would be required to achieve proportionality would not be sufficient to sustain a viable team, i.e., a team for which there is a sufficient number of interested and able students and enough available competition to sustain an intercollegiate team. As a frame of reference in assessing this situation, OCR may consider the average size of teams offered for the under-represented sex, a number which would vary by institution.

For instance, Institution A is a university with a total of 600 athletes. While women make up 52 percent of the university’s enrollment, they only represent 47 percent of its athletes. If the university provided women with 52 percent of athletic opportunities, approximately 62 additional women would be able to participate. Because this is a significant number of unaccommodated women, it is likely that a viable sport could be added. If so, Institution A has not met part one.

As another example, at Institution B women also make up 52 percent of the university’s enrollment and represent 47 percent of Institution B’s athletes. Institution B’s athletic program consists of only 60 participants. If the University provided women with 52 percent of athletic opportunities, approximately 6 additional women would be able to participate. Since 6 participants are unlikely to support a viable team, Institution B would meet part one.

THREE-PART TEST—PART TWO: IS THERE A HISTORY AND CONTINUING PRACTICE OF PROGRAM EXPANSION FOR THE UNDERREPRESENTED SEX?

Under part two of the three-part test (part two), an institution can show that it has a history and continuing practice of program expansion which is demonstrably responsive to the developing interests and abilities of the underrepresented sex. In effect, part two looks at an institution’s past and continuing remedial efforts to provide nondiscriminatory participation opportunities through program expansion.^*

____________

*Part two focuses on whether an institution has expanded the number of intercollegiate participation opportunities provided to the underrepresented sex. Improvements in the quality of competition, and of other athletic benefits provided to women athletes, while not considered under the three-part test, can be considered by OCR in making an overall determination of compliance with the athletics provision of Title IX.

OCR will review the entire history of the athletic program, focusing on the participation opportunities provided for the underrepresented sex. First, OCR will assess whether past actions of the institution have expanded participation opportunities for the underrepresented sex in a manner that was demonstrably responsive to their developing interests and abilities. Developing interests include interests that already exist at the institution.^† There are no fixed intervals of time within which an institution must have added participation opportunities. Neither is a particular number of sports dispositive. Rather, the focus is on whether the program expansion was responsive to developing interests and abilities of the underrepresented sex. In addition, the institution must demonstrate a continuing (i.e., present) practice of program expansion as warranted by developing interests and abilities.

____________

†However, under this part of the test an institution is not required, as it is under part three, to accommodate all interests and abilities of the underrepresented sex. Moreover, under part two an institution has flexibility in choosing which teams it adds for the underrepresented sex, as long as it can show overall history and continuing practice of program expansion for members of that sex.

OCR will consider the following factors, among others, as evidence that may indicate a history of program expansion that is demonstrably responsive to the developing interests and abilities of the underrepresented sex.

OCR will consider the following factors, among others, as evidence that may indicate a continuing practice of program expansion that is demonstrably responsive to the developing interests and abilities of the underrepresented sex:

OCR would also find persuasive an institution’s efforts to monitor developing interests and abilities of the underrepresented sex, for example, by conducting periodic nondiscriminatory assessments of developing interests and abilities and taking timely actions in response to the results.

In the event that an institution eliminated any team for the underrepresented sex, OCR would evaluate the circumstances surrounding this action in assessing whether the institution could satisfy part two of the test. However, OCR will not find a history and continuing practice of program expansion where an institution increases the proportional participation opportunities for the underrepresented sex by reducing opportunities for the overrepresented sex alone or by reducing participation opportunities for the overrepresented sex to a proportionately greater degree than for the underrepresented sex. This is because part two considers an institution’s good faith remedial efforts through actual program expansion. It is only necessary to examine part two if one sex is overrepresented in the athletic program. Cuts in the program for the underrepresented sex, even when coupled with cuts in the program for the overrepresented sex, cannot be considered remedial because they burden members of the sex already disadvantaged by the present program. However, an institution that has eliminated some participation opportunities for the underrepresented sex can still meet part two if, overall, it can show a history and continuing practice of program expansion for that sex.

In addition, OCR will not find that an institution satisfies part two where it established teams for the under-represented sex only at the initiation of its program for the underrepresented sex or where it merely promises to expand its program for the underrepresented sex at some time in the future.

The following examples are intended to illustrate the principles discussed above. At the inception of its women’s program in the mid-1970s, Institution C established seven teams for women. In 1984 it added a women’s varsity team at the request of students and coaches. In 1990 it upgraded a women’s club sport to varsity team status based on a request by the club members and an NCAA survey that showed a significant increase in girls high school participation in that sport. Institution C is currently implementing a plan to add a varsity women’s team in the spring of 1996 that has been identified by a regional study as an emerging women’s sport in the region. The addition of these teams resulted in an increased percentage of women participating in varsity athletics at the institution. Based on these facts, OCR would find Institution C in compliance with part two because it has a history of program expansion and is continuing to expand its program for women in response to their developing interests and abilities.

By 1980, Institution D established seven teams for women. Institution D added a women’s varsity team in 1983 based on the requests of students and coaches. In 1991 it added a women’s varsity team after an NCAA survey showed a significant increase in girls’ high school participation in that sport. In 1993 Institution D eliminated a viable women’s team and a viable men’s team in an effort to reduce its athletic budget. It has taken no action relating to the underrepresented sex since 1993. Based on these facts, OCR would not find Institution D in compliance with part two. Institution D cannot show a continuing practice of program expansion that is responsive to the developing interests and abilities of the underrepresented sex where its only action since 1991 with regard to the underrepresented sex was to eliminate a team for which there was interest, ability, and available competition.

In the mid-1970s, Institution E established five teams for women. In 1979 it added a women’s varsity team. In 1984 it upgraded a women’s club sport with twenty-five participants to varsity team status. At that time it eliminated a women’s varsity team that had eight members. In 1987 and 1989 Institution E added women’s varsity teams that were identified by a significant number of its enrolled and incoming female students when surveyed regarding their athletic interests and abilities. During this time it also increased the size of an existing women’s team to provide opportunities for women who expressed interest in playing that sport. Within the past year, it added a women’s varsity team based on a nationwide survey of the most popular girls high school teams. Based on the addition of these teams, the percentage of women participating in varsity athletics at the institution has increased. Based on these facts, OCR would find Institution E in compliance with part two because it has a history of program expansion and the elimination of the team in 1984 took place within the context of continuing program expansion for the underrepresented sex that is responsive to their developing interests.

Institution F started its women’s program in the early 1970s with four teams. It did not add to its women’s program until 1987 when, based on requests of students and coaches, it upgraded a women’s club sport to varsity team status and expanded the size of several existing women’s teams to accommodate significant expressed interest by students. In 1990 it surveyed its enrolled and incoming female students; based on that survey and a survey of the most popular sports played by women in the region, Institution F agreed to add three new women’s teams by 1997. It added a women’s team by 1991 and 1994. Institution F is implementing a plan to add a women’s team by the spring of 1997. Based on these facts, OCR would find Institution F in compliance with part two. Institution F’s program history since 1987 shows that it is committed to program expansion for the underrepresented sex and it is continuing to expand its women’s program in light of women’s developing interests and abilities.

THREE-PART TEST—PART THREE: IS THE INSTITUTION FULLY AND EFFECTIVELY ACCOMMODATING THE INTERESTS AND ABILITIES OF THE UNDERREPRESENTED SEX?

Under part three of the three-part test (part three) OCR determines whether an institution is fully and effectively accommodating the interests and abilities of its students who are members of the underrepresented sex—including students who are admitted to the institution though not yet enrolled. Title IX provides that a recipient must provide equal athletic opportunity to its students. Accordingly, the Policy Interpretation does not require an institution to accommodate the interests and abilities of potential students.^*

*However, OCR does examine an institution’s recruitment practices under another part of the Policy Interpretation. See 44 Fed. Reg. 71417. Accordingly, where an institution recruits potential student athletes for its men’s teams, it must ensure that women’s teams are provided with substantially equal opportunities to recruit potential student athletes.

While disproportionately high athletic participation rates by an institution’s students of the overrepresented sex (as compared to their enrollment rates) may indicate that an institution is not providing equal athletic opportunities to its students of the underrepresented sex, an institution can satisfy part three where there is evidence that the imbalance does not reflect discrimination, i.e., where it can be demonstrated that, notwithstanding disproportionately low participation rates by the institution’s students of the underrepresented sex, the interests and abilities of these students are, in fact, being fully and effectively accommodated.

In making this determination, OCR will consider whether there is (a) unmet interest in a particular sport; (b) sufficient ability to sustain a team in the sport; and (c) a reasonable expectation of competition for the team. If all three conditions are present OCR will find that an institution has not fully and effectively accommodated the interests and abilities of the underrepresented sex.

If an institution has recently eliminated a viable team from the intercollegiate program, OCR will find that there is sufficient interest, ability, and available competition to sustain an intercollegiate team in that sport unless an institution can provide strong evidence that interest, ability, or available competition no longer exists.

a) Is there sufficient unmet interest to support an intercollegiate team?

[First,] OCR will determine whether there is sufficient unmet interest among the institution’s students who are members of the underrepresented sex to sustain an intercollegiate team. OCR will look for interest by the underrepresented sex as expressed through the following indicators, among others:

In addition, OCR will look at participation rates in sports in high schools, amateur athletic associations, and community sports leagues that operate in areas from which the institution draws its students in order to ascertain likely interest and ability of its students and admitted students in particular sport(s).* For example, where OCR’s investigation finds that a substantial number of high schools from the relevant region offer a particular sport which the institution does not offer for the underrepresented sex, OCR will ask the institution to provide a basis for any assertion that its students and admitted students are not interested in playing that sport. OCR may also interview students, admitted students, coaches, and others regarding interest in that sport.

_______________

*While these indications of interest may be helpful to OCR in ascertaining likely interest on campus, particularly in the absence of more direct indications, the institution is expected to meet the actual interests and abilities of its students.

An institution may evaluate its athletic program to assess the athletic interest of its students of the underrepresented sex using nondiscriminatory methods of its choosing. Accordingly, institutions have flexibility in choosing a nondiscriminatory method of determining athletic interests and abilities provided they meet certain requirements. These assessments may use straightforward and inexpensive techniques, such as a student questionnaire or an open forum, to identify students’ interests and abilities. Thus, while OCR expects that an institution’s assessment should reach a wide audience of students and should be open-ended regarding the sports students can express interest in, OCR does not require elaborate scientific validation of assessment.

An institution’s evaluation of interest should be done periodically so that the institution can identify in a timely and responsive manner any developing interests and abilities of the underrepresented sex. The evaluation should also take into account sports played in the high schools and communities from which the institution draws its students both as an indication of possible interest on campus and to permit the institution to plan to meet the interests of admitted students of the underrepresented sex.

b) Is there sufficient ability to sustain an intercollegiate team?

Second, OCR will determine whether there is sufficient ability among interested students of the underrepresented sex to sustain an intercollegiate team. OCR will examine indications of ability such as:

Neither a poor competitive record nor the inability of interested students or admitted students to play at the same level of competition engaged in by the institution’s other athletes is conclusive evidence of lack of ability. It is sufficient that interested students and admitted students have the potential to sustain an intercollegiate team.

c) Is there a reasonable expectation of competition for the team?

Finally, OCR determines whether there is a reasonable expectation of intercollegiate competition for a particular sport in the institution’s normal competitive region. In evaluating available competition, OCR will look at available competitive opportunities in the geographic area in which the institution’s athletes primarily compete, including:

Under the Policy Interpretation, the institution may also be required to actively encourage the development of intercollegiate competition for a sport for members of the underrepresented sex when overall athletic opportunities within its competitive region have been historically limited for members of that sex.

CONCLUSION

This discussion clarifies that institutions have three distinct ways to provide individuals of each sex with nondiscriminatory participation opportunities. The three-part test gives institutions flexibility and control over their athletics programs. For instance, the test allows institutions to respond to different levels of the interest by its male and female students. Moreover, nothing in the three-part test requires an institution to eliminate participation opportunities for men.

At the same time, this flexibility must be used by institutions consistent with Title IX’s requirement that they not discriminate on the basis of sex. OCR recognizes that institutions face challenges in providing nondiscriminatory participation opportunities for their students and will continue to assist institutions in finding ways to meet these challenges.

LETTER CLARIFYING APPORTIONMENT OF FINANCIAL AID IN INTERCOLLEGIATE ATHLETICS PROGRAMS (JULY 23, 1998)

United States Department of Education, Office for Civil Rights

Dear Ms. Footer:

This is in response to your letter requesting guidance in meeting the requirements of Title IX specifically as it relates to the equitable apportionment of athletic financial aid. Please accept my apology for the delay in responding. As you know, the Office for Civil Rights (OCR) enforces Title IX of the Education Amendments of 1972, 20 U.S.C. § 1682, which prohibits discrimination on the basis of sex in education programs and activities. The regulation implementing Title IX and the Department’s Intercollegiate Athletics Policy Interpretation published in 1979—both of which followed publication for notice and the receipt, review, and consideration of extensive comments—specifically address intercollegiate athletics. You have asked us to provide clarification regarding how educational institutions can provide intercollegiate athletes with nondiscriminatory opportunities to receive athletic financial aid. Under the Policy Interpretation, the equitable apportioning of a college’s intercollegiate athletics scholarship fund for the separate budgets of its men’s and women’s programs—which Title IX permits to be segregated—requires that the total amounts of scholarship aid made available to the two budgets are “substantially proportionate” to the participation rates of male and female athletes. 44 Fed. Reg. 71413, 71415 (1979).

In responding, I wish (1) to clarify the coverage of Title IX and its regulations as they apply to both academic and athletic programs, and (2) to provide specific guidance about the existing standards that have guided the enforcement of Title IX in the area of athletic financial aid, particularly the Policy Interpretation’s “substantially proportionate” provision as it relates to a college’s funding of the athletic scholarships budgets for its men’s and women’s teams. At the outset, I want to clarify that, wholly apart from any obligation with respect to scholarships, an institution with an intercollegiate athletics program has an independent Title IX obligation to provide its students with nondiscriminatory athletic participation opportunities. The scope of that separate obligation is not addressed in this letter, but was addressed in a Clarification issued on January 16, 1996.

TITLE IX COVERAGE: ATHLETICS VERSUS ACADEMIC PROGRAMS

Title IX is an anti-discrimination statute that prohibits discrimination on the basis of sex in any education program or activity receiving federal financial assistance, including athletic programs. Thus, in both academics and athletics, Title IX guarantees that all students, regardless of gender, have equitable opportunities to participate in the education program. This guarantee does not impose quotas based on gender, either in classrooms or in athletic programs. Indeed, the imposition of any such strict numerical requirement concerning students would be inconsistent with Title IX itself, which is designed to protect the rights of all students and to provide equitable opportunities for all students.

Additionally, Title IX recognizes the uniqueness of intercollegiate athletics by permitting a college or university to have separate athletic programs, and teams, for men and women. This allows colleges and universities to allocate athletic opportunities and benefits on the basis of sex. Because of this unique circumstance, arguments that OCR’s athletics compliance standards create quotas are misplaced. In contrast to other antidiscriminatory statutes, Title IX compliance cannot be determined simply on the basis of whether an institution makes sex-specific decisions, because invariably they do. Accordingly, the statute instead requires institutions to provide equitable opportunities to both male and female athletes in all aspects of its two separate athletic programs. As the court in the Brown University case stated, “[i]n this unique context Title IX operates to ensure that the gender-segregated allocation of athletic opportunities does not disadvantage either gender. Rather than create a quota or preference, this unavoidable gender-conscious comparison merely provides for the allocation of athletic resources and participation opportunities between the sexes in a nondiscriminatory manner.” Cohen v. Brown University, 101 F.3d 155, 177 (1st Cir. 1996), cert. denied, 117 S. Ct. 1469 (1997). The remainder of this letter addresses the application of Title IX only to athletic scholarships.

Athletics: Scholarship Requirements

With regard to athletic financial assistance, the regulations promulgated under Title IX provide that, when a college or university awards athletic scholarships, these scholarship awards must be granted to “members of each sex in proportion to the number of students of each sex participating in … intercollegiate athletics.” Since 1979, OCR has interpreted this regulation in conformity with its published “Policy Interpretation: Title IX and Intercollegiate Athletics.” The Policy Interpretation does not require colleges to grant the same number of scholarships to men and women, nor does it require that individual scholarships be of equal value. What it does require is that, at a particular college or university, “the total amount of scholarship aid made available to men and women must be substantially proportionate to their [overall] participation rates” at that institution. It is important to note that the Policy Interpretation only applies to teams that regularly compete in varsity competition.

Under the Policy Interpretation, OCR conducts a “financial comparison to determine whether proportionately equal amounts of financial assistance (scholarship aid) are available to men’s and women’s athletic programs.” The Policy Interpretation goes on to state that “[i]nstitutions may be found in compliance if this comparison results in substantially equal amounts or if a disparity can be explained by adjustments to take into account legitimate nondiscriminatory factors.”

A “disparity” in awarding athletic, financial assistance refers to the difference between the aggregate amount of money athletes of one sex received in one year, and the amount they would have received if their share of the entire annual budget for athletic scholarships had been awarded in proportion to their participation rates. Thus, for example, if men account for 60% of a school’s intercollegiate athletes, the Policy Interpretation presumes that—absent legitimate nondiscriminating factors that may cause a disparity—the men’s athletic program will receive approximately 60% of the entire annual scholarship budget, and the women’s athletic program will receive approximately 40% of those funds. This presumption reflects the fact that colleges typically allocate scholarship funds among their athletic teams, and that such teams are expressly segregated by sex. Colleges’ allocation of the scholarship budget among teams, therefore, is invariably sex-based, in the sense that an allocation to a particular team necessarily benefits one sex to the exclusion of the other. Where, as here, disparate treatment is inevitable and a college’s allocation of scholarship funds is “at the discretion of the institution,” the statute’s nondiscrimination requirements obliges colleges to ensure that men’s and women’s separate activities receive equitable treatment.

Nevertheless, in keeping with the Policy Interpretation allowance for disparities from “substantially proportionate” awards to the men’s and women’s programs based on legitimate nondiscriminatory factors, OCR judges each matter on a case-by-case basis with due regard for the unique factual situation presented by each case. For example, OCR recognizes that disparities may be explained by actions taken to promote athletic program development, and by differences between in-state and out-of-state tuition at public colleges, 44 Fed. Reg, at 71415. Disparities might also be explained, for example, by legitimate efforts undertaken to comply with Title IX requirements, such as participation requirements. See, e.g., Gonyo v. Drake Univ. 879 F. Supp. 1000, 1005–06 (S.D. Iowa 1995). Similarly, disparities may be explained by unexpected fluctuations in the participation rates of males and females. For example, a disparity may be explained if an athlete who had accepted an athletic scholarship decided at the last minute to enroll at another school. It is important to note it is not enough for a college or university merely to assert a nondiscriminatory justification. Instead, it will be required to demonstrate that its asserted rationale is in fact reasonable and does not reflect underlying discrimination. For instance, if a college consistently awards a greater number of out-of-state scholarships to men, it may be required to demonstrate that this does not reflect discriminatory recruitment practices. Similarly, if a university asserts the phase-in of scholarships for a new team as a justification for a disparity, the university may be required to demonstrate that the time frame for phasing-in of scholarships is reasonable in light of college sports practices to aggressively recruit athletes to build start-up teams quickly.

In order to ensure equity for athletes of both sexes, the test for determining whether the two scholarship budgets are “substantially proportionate” to the respective participation rates of athletes of each sex necessarily has a high threshold. The Policy Interpretation does not, however, require colleges to achieve exact proportionality down to the last dollar. The “substantially proportionate” test permits a small variance from exact proportionality. OCR recognizes that, in practice, some leeway is necessary to avoid requiring colleges to unreasonably fine-tune their scholarship budgets.

When evaluating each scholarship program on a case-by-case basis, OCR’s first step will be to adjust any disparity to take into account all the legitimate nondiscriminatory reasons provided by the college, such as the extra costs for out-of-state tuition discussed earlier. If any unexplained disparity in the scholarship budget for athletes of either gender is 1% or less for the entire budget for athletic scholarships, there will be a strong presumption that such a disparity is reasonable and based on legitimate and nondiscriminatory factors. Conversely, there will be a strong presumption that an unexplained disparity of more than 1% is in violation of the “substantially proportionate” requirements.

Thus, for example, if men are 60% of the athletes, OCR would expect that the men’s athletic scholarship budget would be within 59–61% of the total budget for athletic scholarships for all athletes, after accounting for legitimate nondiscriminatory reasons for any larger disparity. Of course, OCR will continue to judge each case in terms of its particular facts. For example, at those colleges where 1% of the entire athletic scholarship budget is less than the value of one full scholarship, OCR will presume that a disparity of up to the value of one full scholarship is equitable and nondiscriminatory. On the other hand, even if an institution consistently has less than a 1% disparity, the presumption of compliance with Title IX might still be rebutted if, for example, there is direct evidence of discriminatory intent.

OCR recognizes that there has been some confusion in the past with respect to the Title IX compliance standards for scholarships. OCR’s 1990 Title IX Investigator’s Manual correctly stated that one would expect proportionality in the awarding of scholarships, absent a legitimate, nondiscriminatory justification. But that Manual also indicated that compliance with the “substantially proportionate” test could depend, in part, upon certain statistical tests. In some cases, application of such a statistical test would result in a determination of compliance despite the existence of a disparity as large as 3–5%.

We would like to clarify that use of such statistical tests is not appropriate in these circumstances. Those tests, which are used in some other discrimination contexts to determine whether the disparities in the allocation of benefits to different groups are the result of chance, are inapposite in the athletic scholarship context because a college has direct control over its allocation of financial aid to men’s and women’s teams, and because such decisions necessarily are sex-based in the sense that an allocation to a particular team will affect only one sex. See Brown, 101 F.3d at 176–78 (explaining why college athletics “presents a distinctly different situation from admissions and employment,” and why athletics requires a different analysis than that used in such other contexts “in order to determine the existence vel non of discrimination”). In the typical case where aid is expressly allocated among sex-segregated teams, chance simply is not a possible explanation for disproportionate aid to one sex. Where a college does not make a substantially proportionate allocation to sex-segregated teams, the burden should be on the college to provide legitimate, nondiscriminatory reasons for the disproportionate allocation. Therefore, the use of statistical tests will not be helpful in determining whether a disparity in the allocations for the two separate athletic scholarship budgets is nondiscriminatory.

While a statistical test is not relevant in determining discrimination, the confusion caused by the manual’s inclusion of a statistical test resulted in misunderstandings. Therefore, OCR is providing this clarification regarding the substantial proportionality provision found in the 1979 Policy Interpretation to confirm the substance of a longstanding standard. In order to ensure full understanding, OCR will apply the presumptions and case-by-case analysis described in this letter for the 1998–99 academic year. OCR strongly encourages recipients to award athletic financial assistance to women athletes in the 1997–98 academic year consistent with this policy clarification, both as a matter of fairness and in order to ensure that they are moving towards the policy clarification stated in this letter.

I trust that this letter responds to the questions the University has regarding the “substantially proportionate” provision of the Policy interpretation in the context of the funding for an institution’s two separate athletic scholarship budgets for male and female athletes….

Sincerely yours,

Dr. Mary Frances O’Shea

National Coordinator for Title IX Athletics

FURTHER CLARIFICATION OF INTERCOLLEGIATE ATHLETICS POLICY GUIDANCE REGARDING TITLE IX COMPLIANCE

United States Department of Education, Office for Civil Rights

Dear Colleague:

It is my pleasure to provide you with this Further Clarification of Intercollegiate Athletics Policy Guidance Regarding Title IX Compliance.

Since its enactment in 1972, Title IX has produced significant advancement in athletic opportunities for women and girls across the nation. Recognizing that more remains to be done, the Bush Administration is firmly committed to building on this legacy and continuing the progress that Title IX has brought toward true equality of opportunity for male and female student-athletes in America.

In response to numerous requests for additional guidance on the Department of Education’s (Department) enforcement standards since its last written guidance on Title IX in 1996, the Department’s Office for Civil Rights (OCR) began looking into whether additional guidance on Title IX requirements regarding intercollegiate athletics was needed. On June 27, 2002, Secretary of Education Rod Paige created the Secretary’s Commission on Opportunities in Athletics to investigate this matter further, and to report back with recommendations on how to improve the application of the current standards for measuring equal opportunity to participate in athletics under Title IX. On February 26, 2003, the Commission presented Secretary Paige with its final report, “Open to All: Title IX at Thirty,” and in addition, individual members expressed their views.

After eight months of discussion and an extensive and inclusive fact-finding process, the Commission found very broad support throughout the country for the goals and spirit of Title IX. With that in mind, OCR today issues this Further Clarification in order to strengthen Title IX’s promise of non-discrimination in the athletic programs of our nation’s schools.

Title IX establishes that: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

….

In its 1979 Policy Interpretation, the Department established a three-prong test for compliance with Title IX, which it later amplified and clarified in its 1996 Clarification….

First, with respect to the three-prong test, which has worked well, OCR encourages schools to take advantage of its flexibility, and to consider which of the three prongs best suits their individual situations. All three prongs have been used successfully by schools to comply with Title IX, and the test offers three separate ways of assessing whether schools are providing equal opportunities to their male and female students to participate in athletics. If a school does not satisfy the “substantial proportionality” prong, it would still satisfy the three-prong test if it maintains a history and continuing practice of program expansion for the underrepresented sex, or if “the interests and abilities of the members of [the underrepresented] sex have been fully and effectively accommodated by the present program.” Each of the three prongs is thus a valid, alternative way for schools to comply with Title IX.

The transmittal letter accompanying the 1996 Clarification issued by the Department described only one of these three separate prongs—substantial proportionality—as a “safe harbor” for Title IX compliance. This led many schools to believe, erroneously, that they must take measures to ensure strict proportionality between the sexes. In fact, each of the three prongs of the test is an equally sufficient means of complying with Title IX, and no one prong is favored. The Department will continue to make clear, as it did in its 1996 Clarification, that “[i]nstitutions have flexibility in providing nondiscriminatory participation opportunities to their students, and OCR does not require quotas.”

In order to ensure that schools have a clear understanding of their options for compliance with Title IX, OCR will undertake an education campaign to help educational institutions appreciate the flexibility of the law, to explain that each prong of the test is a viable and separate means of compliance, to give practical examples of the ways in which schools can comply, and to provide schools with technical assistance as they try to comply with Title IX.

In the 1996 Clarification, the Department provided schools with a broad range of specific factors, as well as illustrative examples, to help schools understand the flexibility of the three-prong test. OCR reincorporates those factors, as well as those illustrative examples, into this Further Clarification, and OCR will continue to assist schools on a case-by-case basis and address any questions they have about Title IX compliance. Indeed, OCR encourages schools to request individualized assistance from OCR as they consider ways to meet the requirements of Title IX. As OCR works with schools on Title IX compliance, OCR will share information on successful approaches with the broader scholastic community.

Second, OCR hereby clarifies that nothing in Title IX requires the cutting or reduction of teams in order to demonstrate compliance with Title IX, and that the elimination of teams is a disfavored practice. Because the elimination of teams diminishes opportunities for students who are interested in participating in athletics instead of enhancing opportunities for students who have suffered from discrimination, it is contrary to the spirit of Title IX for the government to require or encourage an institution to eliminate athletic teams. Therefore, in negotiating compliance agreements, OCR’s policy will be to seek remedies that do not involve the elimination of teams.

Third, OCR hereby advises schools that it will aggressively enforce Title IX standards, including implementing sanctions for institutions that do not comply. At the same time, OCR will also work with schools to assist them in avoiding such sanctions by achieving Title IX compliance.

Fourth, private sponsorship of athletic teams will continue to be allowed. Of course, private sponsorship does not in any way change or diminish a school’s obligations under Title IX.

Finally, OCR recognizes that schools will benefit from clear and consistent implementation of Title IX. Accordingly, OCR will ensure that its enforcement practices do not vary from region to region.

OCR recognizes that the question of how to comply with Title IX and to provide equal athletic opportunities for all students is a challenge for many academic institutions. But OCR believes that the three-prong test has provided, and will continue to provide, schools with the flexibility to provide greater athletic opportunities for students of both sexes.

OCR is strongly reaffirming today its commitment to equal opportunity for girls and boys, women and men. To that end, OCR is committed to continuing to work in partnership with educational institutions to ensure that the promise of Title IX becomes a reality for all students.

Thank you for your continuing interest in this subject.

IMPACT ON COACHES

GENDER EQUITY IN COLLEGE ATHLETICS: WOMEN COACHES AS A CASE STUDY

Deborah L. Rhode and Christopher J. Walker

INTRODUCTION

As Title IX celebrates its thirty-fifth anniversary, few would doubt its importance in changing the landscape of women’s athletics. Since its enactment, female participation in high school sports increased from 294,000 athletes in 1971 to 2.9 million in 2006.¹ During roughly the same period, female participation in intercollegiate sports soared from 16,000 in 1970 to over 180,000 in 2005.² The effects of increased opportunity are also reflected in America’s Olympic and world championship medals in both individual and team sports, including basketball, gymnastics, ice hockey, soccer, softball, volleyball, water polo, skiing, golf, speed skating, swimming, tennis, track and field, and wrestling.³ Not all of this progress is, of course, directly attributable to Title IX. Broader cultural changes in the status of women are at work and are themselves responsible for the statute’s enactment and implementation. But few doubt the legislation’s powerful role in transforming the landscape of women’s athletics.

Despite this impressive legacy, however, considerable frustration persists in how the statute has, or has not, been implemented. Some complain that the pace of change has been too slow and that substantial gender disparities persist in participation rates and expenditures. Others are unhappy that progress for women’s sports appears to have come at the expense of men’s sports. Too little attention has, however, focused on one of the most ironic byproducts of Title IX: as opportunities for female students have increased, opportunities for female professionals have declined. Only 42% of women’s teams have a female head coach, compared to over 90% in 1972. The number of men’s teams with a female head coach remains at fewer than 2%, a figure unchanged since the 1970s. That leaves less than a fifth (17.7%) of all college teams with a woman in charge.⁴ Furthermore, women coaches of women’s teams win fewer championships than their male counterparts. At last count, six intercollegiate women’s sports, including volleyball and swimming, have never had a team win the national championship with a female head coach; soccer has had only one.⁵ Women have also lost departmental control of women’s collegiate sports programs. Almost all are now merged with men’s, and less than a fifth of top administrative jobs go to women.⁶

This Article focuses on the barriers that still confront women in college athletics, particularly those who seek professional positions in coaching and administration….. Part II. A discusses the declining representation and lower success rate of women coaches…. Part III presents the findings of the empirical research conducted for this Article. We surveyed 462 coaches of women’s collegiate teams to better understand their needs, priorities, and opinions on coaching and the role of Title IX. Part IV situates these findings in light of other research on barriers for women in male-dominated settings, including coaching, and concludes with potential policy prescriptions.

[Ed. Note: Authors’ historical overview of gender equity and Title IX is omitted.]

….

II.  WOMEN COACHES IN COLLEGE ATHLETICS

A  The Representation and Success of Women Coaches

As noted earlier, the increase in resources for women athletes has brought a dramatic increase in men’s interest in coaching them, and a corresponding decrease in coaching opportunities for women. Female head coaches lead only 42% of women’s teams, as opposed to over 90% in 1972 when Title IX was first enacted.⁵⁸ Most of the decline occurred in the l970s, but the trend persists: 2006 registered the lowest ever proportion of female coaches for women’s teams.⁵⁹ This decline does not appear attributable to an absence of women’s interest in coaching positions because the percentage of female assistant coaches has remained constant since the 1990s.⁶⁰ As one commentator puts it, women are entering the ranks, but the “professional finish line … continues to elude them.”⁶¹ The situation is bleaker still for women seeking head coach positions of men’s teams: the number in that role has remained at 2% since the l970s.⁶² The result is that only 17.7% of all teams have a female head coach.⁶³

Women are underrepresented not only in head coaching positions, but in those that produce the most competitive successes in women’s sports. Table 1 details the success rate of women coaches.⁶⁴

The first two columns compare 1995–1996 figures with 2003–2004 figures for the percentage of women head coaches for women’s teams. The third column demonstrates the percentage of women coaches who successfully coached their teams into the NCAA tournament during the 2003–2004 season, while the final column portrays the percentage of women coaches of national championship teams during the past twenty-five years. These sport-by-sport statistics, although useful to a point, fail to capture some complexities in women’s sports, because some sports have been dominated mostly by female head coaches, while in others they are almost nonexistent. Moreover, the gender difference in success rates should not be taken to imply gender differences in coaching capabilities. Rather, it may reflect women’s underrepresentation in positions with the greatest access to resources and talented athletes. Still, the lack of women coaches, together with their lack of relative success, raises several grounds for concern.

Source: “Gender Equity in College Athletics: Women Coaches as a Case Study” by Deborah L. Rhode and Christopher J. Walker. Copyright 2008 by Stanford Journal of Civil Rights and Civil Liberties. Reproduced with permission of Stanford Journal of Civil Rights and Civil Liberties in the format Textbook via Copyright Clearance Center.

The first involves the violation of meritocratic principles and the injustice for women who aspire to such professional positions. What little empirical evidence is available finds that women coaches are more qualified than their male counterparts in terms of training, experience, and achievement.⁶⁵ As subsequent discussion suggests, women’s underrepresentation may be more attributable to unconscious biases, exclusionary recruiting networks, and inflexible working structures than to objective qualifications. Their poorer success rates may also partly reflect lack of mentoring and institutional support. A further concern is the impact that this underrepresentation has on female athletes. Many young women benefit from the distinctive experiences, coaching style, and role models supplied by female coaches. Dena Evans, former head coach of Stanford’s cross-country team, notes that many women, particularly those in Division I, “will spend more time with the coaches in their sport than they will with any professor.”⁶⁶ The lack of female role models in coaching and athletic leadership sends a disturbing message to female athletes about their own likely professional opportunities. Finally, the under-representation of women in key athletic positions may work against alternative conceptions of sporting excellence that focus less on revenues and more on participation and the benefits that it can foster.

[Ed. Note: Authors’ discussion of legal remedies for gender discrimination against women coaches is omitted.]

….

III.  FINDINGS FROM A NATIONAL SURVEY OF WOMEN COLLEGIATE COACHES

As noted earlier, little empirical research is available on the state of women coaches in collegiate athletics.⁹² This Article fills some of the gaps by providing a data set from perhaps the most important source: the coaches themselves. Although the results are far from conclusive, they do highlight some of the challenges still facing women seeking professional careers in college athletics and, together with other research reviewed in Part IV, suggest some avenues for change.

A  Survey Methodology

An electronic survey … was mailed to coaches of women’s collegiate teams in March and April 2006.⁹³ We targeted coaches of women’s teams via email correspondence, website postings, and listserv distributions.⁹⁴ Although the surveys were anonymous, participants had an option of including their email address in order to receive the results of the survey. Participants were also provided our contact information if they had further questions or comments.⁹⁵

Hundreds of surveys were sent via email to coaches of women’s collegiate teams with the request that they forward the survey link on to their colleagues. Of the 701 surveys submitted, 239 surveys had to be discarded due to incomplete responses. Of those 462 remaining participants who completed the survey, a quarter were male (24.3%), and three-quarters were female (75.7%).⁹⁶

… For present purposes, the most relevant characteristics are as follows: about three-quarters of the respondents were head coaches and 60% were in Division I schools. Over half the female coaches and a quarter of the male coaches were single. About 11% of the women and 4% of the men reported having domestic partners. Slightly over a quarter of the women and over half of the men had children. This profile is consistent with national data on coaches, which indicates that female coaches are significantly less likely than male coaches, or women in general, to be married or to have children.⁹⁷ As survey findings suggest, this gender difference may be partly attributable to the difficulties of reconciling coaching demands with family responsibilities, which still fall disproportionately on women. About 90% of the coaches who responded were white, a proportion again representative of coaches in the nation as a whole.⁹⁸

Almost half of the participants were thirty-five or younger, and about the same percentage had graduate degrees and at least ten years of coaching experience. No significant gender differences in age, ethnicity, or qualifications emerged, except that women had significantly better athletic performance records in college. This last finding is consistent with the research noted earlier, finding that women coaches have higher qualifications than their male counterparts. And as subsequent discussion suggests, such gender differences may also suggest that women need higher credentials in order to advance within the coaching profession.

Participants came from sixteen different sports and relatively high performing programs. About four-fifths of the men, compared with two-thirds of the women, reported coaching at least “above average” teams. This finding is also consistent with other research summarized in Part II indicating that female coaches are less likely to be in positions yielding greatest competitive success.

B.  The Role of Title IX in Promoting Women’s Athletics and Women Coaches

The survey began by asking coaches to evaluate the impact of Title IX on various aspects of gender equity in collegiate athletics. Virtually all (96%) reported that Title IX has had a “strong” or “very strong” effect on the “number of female athletes and athletic teams on college campuses.” Another four-fifths (81%) of coaches found a similar “strong” or “very strong” effect on the “general interest in, and significance of, women’s athletic teams on college campuses.” Four-fifths also reported a strong or very strong positive effect on the fair allocation of resources between men’s and women’s teams; one in five coaches (21%) believed that Title IX has had no effect or a negative effect on resource allocation.

Assessments of Title IX’s impact on coaching and leadership opportunities are somewhat more qualified. About three-fourths felt that Title IX had a positive effect on “the resources college coaches of women’s teams have to be successful.” Two-thirds thought that the statute had positively affected leadership opportunities, and three-fifths believed that it had had similar impact on “the number and likelihood of women coaching at the collegiate level.” However, as Table 2 indicates, assessments of the value of Title IX for women coaches were more mixed.

Gender differences in these results were minimal except with respect to the effect of Title IX on women coaches. Two-thirds (66%) of male respondents believed that Title IX had a positive effect on women coaches, while only about half (54%) of female respondents agreed. Only 6% of men indicated that Title IX had a negative effect on women coaches, and another 27% reported no effect. By contrast, 18% of women coaches believed it had a negative effect, and 28% felt it had no effect. Head coaches also offered less positive assessments than assistant coaches: almost half reported no effect (30%) or a negative effect (16%) on women coaches, while only a third of assistant coaches saw no effect (18%) or a negative effect (15%).

Coaches had an opportunity to explain their views in response to an open-ended question: “If you do not think that Title IX has had a favorable (or sufficiently favorable) effect, why not and what reforms would be appropriate?” Of the 462 coaches surveyed, 169 responded. Many prefaced their concerns by acknowledging significant positive effects of Title IX. As one coach noted, “I would not have a job without it.” But considerable frustration surfaced with the way that the statute had, or had not, been enforced. One cluster of grievances involved the failure of Title IX to secure true equality for women. Other concerns involved the adverse affect on men.

According to many respondents, a central limitation of Title IX involved the absence of oversight of schools’ data reporting and the lack of penalties for noncompliance:

There is not enough backbone to it.

There is no strong policing. Reporting is just a shell game from the Athletic Director’s perspective. There is never a check and balance on that reporting. There needs to be some kind of audit …

There are no repercussions for schools that don’t comply …

Check out the debacles on the high school and city recreation level … It’s a nightmare.

A related frustration involved continued inequalities in salaries, program support, and leadership opportunities. As some coaches put it, athletics was still under the control of an “old boys network” and “they take care of each other.” The few women who were in high positions could not necessarily serve as effective Title IX advocates because their focus had to be on “making money, raising money, winning games.” Many respondents also noted a double-edged byproduct of the increased status, compensation, and “professionalism” of women’s sports: their increased attractiveness to male coaches. As more men came in, more women lost out. An equally unhappy consequence was the pressure to boost female participation rates beyond what resources permitted. As one coach put it, “we are required to carry more [athletes] without the necessary funds/staff to take care of more.” An example was a golf team that had to carry twelve members but only had travel support for five. Adding women just to improve an institution’s “equity numbers” adversely affected “team chemistry” and compromised talented athletes’ access to playing and coaching time.

By contrast, other respondents regretted that Title IX had “limited opportunities for men while increasing opportunities for women.” The main concern was the reduction in non-revenue male sports:

A related concern was the impact of Title IX on male applicants for coaching positions:

Other respondents, however, noted precisely the opposite form of favoritism: male athletic directors who hired male “friends or friends of friends” or coaches with “less experience [who would] … teach the girls to play like a guy.” Several survey participants challenged the “misconception” that Title IX was to blame for the demise of male sports. From their vantage, the statute was a convenient “scapegoat,” an “excuse to drop programs instead of raising revenues” or curbing expenses of college football.

One striking aspect of these responses is the absence of reform strategies. Apart from general calls for more enforcement and less curtailment of male programs, survey participants had little to say about how to avoid the problems they identified. None suggested how to address the decline in female coaches. To gain insight into that problem, the remainder of the survey focused on the keys to coaching success and ways to assist women in gaining equal opportunity in athletic leadership positions.

C.  The Keys to Coaching Success

Coaches were asked to identify what they need to succeed at the collegiate level, and nine in ten coaches reported that the following were “very important” or “most important” to success: (1) institutional support (from college, athletics director) (92%); (2) financial resources for program operations (91%); and (3) resources for recruiting (90%). Another four-fifths (82%) found staffing resources to be “very important” or “most important,” while only half found the same for mentorship/professional development resources. Only one in three (32%) found childcare and flexibility for coaches’ family concerns to be “very important” or “most important,” although three in four (76%) coaches found this need to be at least “important.” Table 3 breaks down these findings in more detail. Fifty-one coaches also identified other important resources, primarily facilities, but also scholarships.

Again, some noteworthy gender differences emerged in the responses. Unsurprisingly, male and female coaches differed in the priority they attached to childcare and family concerns: close to half of both men and women (45%) considered these issues important, but less than a fifth (19%) of male coaches indicated that this was “very important” or “most important”—in comparison to over a third (36%) of women coaches. Women coaches also gave higher priority to mentoring and professional development; about three-fifths (58%) considered it “very important” or “most important,” while only a third of men put it in that category. Women were also somewhat more likely to find staffing resources to be “very important” or “most important” (83%) than their male counterparts (77%).⁹⁹

Coaches had an opportunity to expand on their views in response to an open-ended question: “Please comment on any of these above-listed resources or others that are not listed. What makes them so important to program success? Who is in the best position to provide the most important resources?” Of the 462 coaches surveyed, 232 responded. Money was the dominant and nearly universal concern. As one respondent put it, “Financial resources are the gateway to success in other areas.” They made possible adequate salaries, facilities, scholarships, staff, equipment, travel, recruiting, marketing, and other operational support. The following responses are typical:

There is, in short, no substitute for financial support in building effective athletic programs. The more time coaches have to spend raising funds, the less time they have for what they are being “paid to do and that is COACH THE GAME.” The minority of respondents who mentioned child care also felt strongly about its importance. In order to keep women with children “in the ranks,” some support was critical, especially during the peak season. Most survey participants viewed the athletic director as the key player in making sure resources were adequate, followed by the college president. The “Senior Woman Administrator” was almost never mentioned, even though the NCAA began to require members to create this position in 2001 partly to address such concerns.¹⁰⁰

D. The State of Coaches’ Athletic Programs

In addition to identifying what coaches need for successful programs, we sought to understand how often coaches had the necessary support. To that end, the survey asked “How far away is your program from the ideal situation?” with respect to eight important factors. Table 4 details coaches’ responses.

What is perhaps most surprising about these responses is that they reflect no significant gender differences.¹⁰¹ This is all the more striking because as Part III indicated, fewer women reported coaching high quality teams. It is also noteworthy that relatively little dissatisfaction surfaced about work family/conflicts; it may be that those who experience difficulty leave their positions.

Survey participants also had the chance to expand on their views in response to three open-ended questions:

Predictably, what coaches wished to change most about their program involved money. Most financial concerns fell into two clusters: more competitive salaries for themselves and their assistants, and additional resources for scholarships, recruiting, facilities, and staff positions. In addition to financial concerns, many coaches mentioned insufficient recognition, respect, and general appreciation for their team, their sport, and their hard work. The barriers to success took similar form. Inadequate budgets for scholarships, salaries, recruiting, and facilities were the dominant concern. The keys to progress followed obviously from that diagnosis: more support from their department and institution. A striking omission from the list was attention to factors that disproportionately affect women. Only two respondents put childcare benefits or more flexible schedules among their key concerns. And only a few mentioned inequalities in relation to men’s teams, such as access to facilities or budgets. One objected to the pressure to expand team membership beyond what was productive for competition prior to a Title IX compliance review. However, as subsequent discussion notes, many of these issues surfaced when respondents were asked to focus on women’s status, and their responses suggest that gender bias may help account for the insufficiency of support and respect that were key concerns.

In identifying the most important ingredient for success in their programs, coaches overwhelmingly cited personal qualities—their own and their players’. Hard work, dedication, perseverance, and commitment were key characteristics. Building a positive team dynamic and recruiting talented athletes were also crucial. A few respondents singled out an NCAA women coaches academy as particularly helpful in career development.¹⁰² Several also mentioned developing the ability to “do more with less.” Ironically, however, success along those lines could be double edged. As one coach explained, “If you win a lot with less,” the department will not give you more.

E. Gender Inequalities in Coaching and Administration

Survey participants had several opportunities to directly address gender disparities in athletic leadership, and over three-fourths of the sample (353) responded. One question asked about student athletes’ gender preferences in coaching. Another open-ended question asked: “Why do you think that women are underrepresented at leadership levels in collegiate athletics (e.g., head coaches, athletic directors, etc.)?” A related question asked “What more needs to be done to get more female coaches in college athletics?” Taken together, these responses offer an unusually rich account of women’s professional status in college sports.

First, as Table 5 indicates, over 90% of coaches agreed that male athletes prefer male coaches, and almost two-thirds disagreed that they accept female coaches. By contrast, about two-thirds thought that female athletes prefer female coaches, but almost all believed that female athletes accept male coaches. Men and women coaches agreed to roughly the same degree on all of these responses.

Obviously, student preferences account for some of the gender inequality in coaching, but they cannot of themselves explain the decline in female coaches of female teams over the last two decades. In responding to the question about what accounts for women’s underrepresentation in athletic leadership, virtually no respondents blamed athletes. A significant minority thought that time was the major explanation:

Most of those responding assumed that time was the answer as well as the explanation for women’s unequal status. The large increase in women’s participation “will eventually filter into the leadership levels but it takes time.” “Simply put, [women] started way behind but they are now catching up.” Other survey participants, however, noted a countervailing trend. “As a result of Title IX, salaries for women’s teams have increased, therefore men are now becoming interested in those positions.” Although athletic directors and team members were happy to have men as coaches in women’s sports, “a woman will never be hired to coach a men’s team.” It was simply “not going to happen. [The women’s] playing field is narrow.” The result is that women face more competition for coaching positions, and they are locked out of the high revenue sports that are gateways to leadership in most athletic departments. Because the teams that have the largest support groups (alumni, parents, etc.) appear to be mostly male sports—they are still the “money makers for the schools—they get more respect and appear to have more influence on who runs the show—men.”

A relatively small minority of respondents felt that women were simply not as interested as men in the opportunities that were available, or were not as “aggressive,” “competitive,” or “self-confident” in pursuing them. Some believed that “women will not apply for a job unless they feel highly qualified.” A few thought that women often lacked adequate judgment or experience for leadership positions, and several pointed to examples of female coaches who were “under-qualified” or had been “promoted too soon” and couldn’t succeed. But the vast majority of respondents felt that the root of the problem was not women’s lack of interest or ability, but family responsibilities and gender bias that made current leadership opportunities seem undesirable, unrealistic, or otherwise unattainable.

Many coaches stressed the inherent difficulty of balancing the time and travel demands of coaching with family obligations:

Other respondents thought that the problem was not just the structure of the job but also the lack of support for working mothers:

Unlike fathers, who are expected “to work long hours and are normally not the primary care giver to children,” mothers are expected to put family first. One respondent summarized widespread views: “After all is said and done, many female coaches choose family over career when there are issues at home.” At many institutions, inadequate salaries contribute to that choice: the pay isn’t enough to compensate for the long hours and childcare costs.

Yet the most frequent explanation that survey participants offered for women’s underrepresentation was neither time nor families, but gender bias. Over fifty respondents used some variant of the phrase “old boys club” to describe a cluster of problems, and many others captured the same concerns in less colloquial terms. As coaches often noted, men dominate athletic leadership, and “men hire men.” They prefer “people they know or people who are similar to them.” Informal networks add to men’s advantages. “Guys look out for each other and help their friends into better positions.” By contrast, women “haven’t established the good old girls network enough.” There aren’t enough women in leadership positions to help all those who need it. Several respondents also pointed out that most university presidents and major athletic donors are men who generally preferred men as athletic directors. Female candidates were frequently channeled into Senior Woman Administrator positions. Survey participants who commented on those positions generally viewed their presence as “tokenism” or “just for show” and lacking in real influence.

Respondents offered different explanations for these dynamics. Some attributed the problem to men’s discomfort with women “in power positions”: “Male coaches don’t want to be told what to do by a woman.” Others thought that men were “afraid of no longer having a ‘boys club’ work environment.” That discomfort created comparable problems for women. They ended up in what was “not a friendly or enjoyable atmosphere to work in,” which often led to career changes. Male resistance also constrained the efforts of the small number of women who managed to occupy positions of power. As one respondent noted, “It is difficult to break into the higher levels and … [those] who do may not want to jeopardize their position by rocking the boat.”

Other respondents saw the main problem as adverse stereotypes about competence and commitment. Some felt women were not “respected” or had to be “twice as hardworking” and “twice as successful” as male counterparts to earn that respect. Men were assumed to have greater expertise; women had to “do more to get the same recognition,” and their performance was more often “under a microscope.” In athletics, like other leadership contexts, women suffered from the double bind of being too assertive or not assertive enough: “They get characterized as too tough or too soft, and get passed over.” An equally common assumption was that women would not be as “capable working the ‘old boy’ network of alumni donors.” Others stressed how difficult it was “to rise above the stereotypes and stigma if you are a mother …. They will look at you as not competent to do the job.” Women who might become mothers also suffered from that stigma because those doing the hiring “don’t want to go through the search process multiple times in a few years” to replace coaches who leave for family reasons.

Bias against lesbians was more pronounced, and could also affect “strong confident competitive women” who were suspected to be lesbians:

Many respondents linked these patterns with broader cultural forces. As they noted, “women are underrepresented at all leadership levels from politics to college athletics.” It did not, however, follow that athletic departments were powerless to address the issue. A number faulted the profession in general or their own institutions in particular for failing to mentor women. As one put it, “there is plenty of focus on development of female players but not much in terms of developing female coaches.” Female athletes and young assistant coaches “are not seeing enough encouragement to continue.”

Responses to the question about what more could be done to attract women coaches suggested a variety of ways to address these problems. As Table 6 indicates, men and women generally agreed on the need for more mentoring/professional development (66.5% women, 56.5% men, and 64.3% total). However, on other issues, significant gender differences emerged. Only a third (31.5%) of male coaches thought that more institutional support was necessary, and only a quarter identified a need for more female-friendly environments (23.9%) or more flexible coaching commitments (26.1%). By contrast, a majority of female coaches cited institutional support (59.8%) and more female-friendly environments (57.4%) as necessary, and about 40% thought more flexible coaching commitments would help.

Eighty-nine coaches mentioned other factors. The most common suggestion was to provide higher or more equitable salaries. Many respondents stressed the need to make hiring women a priority, to expand searches, and to encourage more women to go into coaching. Others felt that the problem was that there were not enough women who were interested or committed. Those who were should “stop whining about not having enough opportunities and work their hardest with the opportunities that [they] have.” To deal with work/family conflicts, several respondents proposed more childcare services. One offered a cheaper solution: “Find coaches who don’t want children because when you get right down to it the mother is more likely to want to be home once she has children.”

Some respondents felt that “nothing could be done” or that time would take care of the problem. Others thought broader shifts in cultural attitudes would be necessary to even the playing field:

A number of respondents, however, objected to the question. As one put it, “Why is that you have to have more women coaches? If a man can do that same job more effectively then he should get it. I am totally against any bias.” Others similarly stressed that “the best person should get the job” and noted that a “female coach isn’t always right for the job, just because she is a woman.”

On the whole, however, there remains significant dissatisfaction about the enforcement of Title IX and its effect on both female and male athletes. There is comparable frustration with the barriers confronting women in coaching and athletic administration. Taken together with other research, these survey findings highlight the obstacles to equity that persist, and suggest some plausible directions for reform.

IV.  GENDER EQUITY AND ATHLETIC OPPORTUNITY

A. Barriers to Women in Coaching and Athletic Administration

Many themes of this survey take on additional significance when viewed in the context of other data on women’s opportunities for leadership in general and athletic positions in particular. As noted earlier, recent empirical research on coaching and athletic administration is sparse. Much of what is available involves small interview samples or broad demographic findings.¹⁰³ However, a rich literature exists on women in upper-level management and professional settings, which bears on women seeking positions in male-dominated athletic departments. Our survey, together with this body of research, reported cases, and press accounts, suggests barriers along three dimensions: adverse stereotypes; in-group favoritism in hiring, mentoring, and support networks; and work/family conflicts. Our more general findings about problems in equal opportunity enforcement structures also bear relevance for women professionals in fields other than athletics.

The first barrier involves the mismatch between stereotypes associated with women and those associated with leadership. Men continue to be rated higher than women on most of the qualities associated with leadership.¹⁰⁴ People more readily credit men with leadership ability and more readily accept men as leaders.¹⁰⁵ What is assertive in a man seems abrasive in a woman, and female leaders risk seeming too feminine or not feminine enough.¹⁰⁶ An overview of more than a hundred studies confirms that women are rated lower as leaders when they adopt authoritative, seemingly masculine styles, particularly when the evaluators are men, or when the role is one typically occupied by men.¹⁰⁷ In effect, women face tradeoffs that men do not.

These stereotypes are very much in play in athletic settings. Some coaches in our survey, like those in other studies, attributed women’s underrepresentation in head coaching and upper level administration to women’s lack of assertiveness, competitiveness, and drive to obtain such positions.¹⁰⁸ Both coaches and student athletes also report that women have more difficulty than men in commanding respect.¹⁰⁹ One reason that athletes prefer male coaches is that they appear more authoritative and less emotional than their female counterparts.¹¹⁰ Yet women’s attempts to act authoritatively can be off-putting, especially to men, and may evoke homophobic biases.¹¹¹ The adverse stereotypes associated with lesbians are a widely reported problem in athletics, and undoubtedly help account for women’s attrition and underrepresentation in key positions.¹¹²

A related bias involves in-group favoritism. Extensive research documents the preferences that individuals feel for members of their own groups. Loyalty, cooperation, favorable evaluations, and the allocation of rewards and opportunities all increase in likelihood for in-group members.¹¹³ A key example is the presumption of competence that dominant groups accord to their members but not to outsiders. Even in experimental situations where male and female performance is objectively equal, women are held to higher standards, and their competence is rated lower.¹¹⁴ In-group favoritism is also apparent in the informal networks of mentoring, contacts, and support that are critical for advancement. People generally feel most comfortable with those who are like them in important respects, including gender. Women in traditionally male-dominated settings often remain out of the loop of advice and professional development opportunities, and women of color are particularly likely to experience isolation and exclusion.¹¹⁵

Virtually all surveys of female coaches report problems stemming from these forms of favoritism, a problem colloquially labeled as “the old boys’ network.” Many women feel they need to work twice as hard and be twice as successful to get the same recognition as their male counterparts.¹¹⁶ This perception is consistent with frequently held beliefs that women are underrepresented in head coaching positions because they lack the qualifications and are too often hired for reasons of affirmative action rather than merit.¹¹⁷ Whether there is a basis for these beliefs is open to question. As noted earlier, surveys find that female head coaches are more qualified than their male counterparts in terms of professional experience and training.¹¹⁸ Although women also have poorer success records, it is unclear whether the cause is different levels of competence or different quality teams and institutional support. Given the subjectivity of hiring decisions, the influence of adverse stereotypes is difficult to expose.¹¹⁹

In any event, women have reason to see favoritism running in the opposite direction. Their perception that men favor men in hiring is consistent with surveys finding that women’s chances of obtaining a coaching position are lower under male than female directors.¹²⁰ Women also have more difficulty advancing to positions of athletic director.¹²¹ So too, women often experience difficulty gaining support and mentoring in male-dominated athletic settings, which can translate into burnout and early attrition.¹²² Such problems may be compounded by backlash, stemming from the sense widely reported in our own and other surveys that Title IX has given women an unfair share of athletic resources.¹²³ When such attitudes undermine compliance with gender equity requirements, women’s frustration and attrition increase. Unsurprisingly, survey evidence suggests that coaches who perceive a lack of compliance are less likely to be satisfied with their position and to plan to stay in coaching.¹²⁴

A final set of obstacles involves work/family conflicts. Part of the problem involves the persistent gender inequalities in family roles. Despite an increase in men’s assumption of domestic responsibilities, women continue to shoulder a disproportionate burden in dual career couples.¹²⁵ In one particularly illuminating study of high-achieving women, four out of ten felt that their husbands created more work than they contributed.¹²⁶ Unequal domestic burdens pose particular problems for women in workplaces with highly demanding and inflexible schedules. Inability to accommodate family responsibilities is a major reason why professional women step off the leadership track.¹²⁷

It is also a primary explanation for women’s underrepresentation in head coaching positions. Respondents in our survey, like those in other studies, noted the unrelenting and inconvenient schedules of athletic competition as a major obstacle for women with significant childrearing responsibilities. “Jobs that never end,” expectations of “24/7” availability, and “family unfriendly” environments were typical observations.¹²⁸ Stories of the “faster than the speeding bullet” maternity leave are legendary: a coach who visited a recruit while in labor and another who was courtside six hours after giving birth.¹²⁹ According to Census data, average workloads for female coaches are 2400 hours a year and 2600 for male coaches, which are both well above the national average for full-time workers.¹³⁰ At the same time, average hourly pay scales are well below the national average, which makes it difficult for many families to afford child care to cover extended schedules.¹³¹

Not all of these problems are easily addressed, and some will require broader changes in cultural norms and institutional priorities. But as discussion below suggests, at least some are within reach of plausible reform strategies.

B.  Problems in Title IX Enforcement

Title IX has failed to adequately address the barriers to women in collegiate coaching. Many participants in our survey cited problems in enforcement that ran in opposite directions. One involved failures in oversight structures: the lack of sanctions for noncompliance with Title IX, and the lack of independent checks on compliance data. The converse problem involved the negative byproducts of enforcement, primarily the effect on male sports and talented male athletes who were deprived of competitive opportunities. But, some women’s teams suffered as well. The pressure to expand participation beyond the resources available often compromised morale and performance. Although the result might be to improve the school’s perceived compliance with Title IX, it also subverts the purpose of the statute to equalize opportunities for a successful athletic experience.

At the root of this problem are financial constraints. Those same constraints were the source of most coaches’ unhappiness with the state of their current programs. The vast majority of participants in our survey viewed additional resources as essential for success. Most who expressed a view on how to solve the problem felt that the appropriate response was to “equalize up”—to add resources for women’s sports without taking away opportunities from men.

This is also the preferred response by many women’s rights advocates and the Secretary’s Commission on Opportunity in Athletics. The Commission’s report concluded, “Enforcement of Title IX needs to be strengthened toward the goal of ending discrimination against girls and women in athletics, and updated so that athletic opportunities for boys and men are preserved.”¹³² As other commentators have noted, cutting male programs to finance female teams creates backlash against women and weakens support for Title IX enforcement.¹³³ Yet how this result can be avoided under current budgetary constraints is a question on which few participants in our survey commented. The few who commented suggested curtailing football expenditures, an approach commonly proposed by commentators.¹³⁴ The political feasibility of this response, along with other reform strategies, deserves closer scrutiny.

C.  Strategies for Reform

The policy recommendations that emerge from our survey and related research fall along a continuum. Some would require shifts in attitudes and increases in resources by institutions and government enforcement agencies. Progress along those lines will to some extent depend on broader changes in cultural values. However, some strategies involve relatively modest budgetary commitments and programmatic restructuring. In the long run, institutions as well as individual athletes will benefit from initiatives that even the playing field for women, and broaden the talent pool of coaches and athletic administrators.

Calls for heightened enforcement, sanctions, and oversight of compliance data face significant difficulties in the current political climate. Given the substantial other claims on government resources, the lack of widespread public concern, and the likelihood of resistance by higher education constituencies, major changes in enforcement practices seem unlikely.¹³⁵ However, continued pressure by athletic and women’s rights organizations, together with recently strengthened legal protections from retaliation for coaches who raise compliance issues, may make incremental progress possible.

Finding ways to increase financial resources for women’s programs without curtailing men’s programs poses comparable difficulties. The vast majority of higher education institutions confront escalating costs and flat or declining revenues.¹³⁶ Few of these institutions can realistically expect to find substantial additional support for female sports through increased alumni contributions or profit-generating athletic activities.¹³⁷ The only alternatives will be to use general funds or to reduce expenditures on male programs. Many college leaders are likely to view men’s athletics as “just as good a source … [of increased budgets for women] as dollars that are spent on other important educational activities like need-based financial aid, reductions in class sizes, or expanded library and computing resources …. This is especially true if men have enjoyed more athletic opportunities in the past because of discrimination against female athletes.”¹³⁸

One possible source of funds could come from curbing the arms race in football expenditures, which some experts believe already ill serves colleges’ collective interest.¹³⁹ The difficulty, of course, is that individual schools are reluctant to make cuts that might affect performance and jeopardize their reputation and relations with alumni, students, state government funders, and the broader community. An obvious response would be organizational or legislative initiatives that would encourage capping certain expenditures for all institutions.¹⁴⁰ However, in the absence of such initiatives, and in the 40% of NCAA schools that do not field football teams, it may be difficult to secure the resource increases that participants in our survey advocated.¹⁴¹ However, institutions can at least focus on initiatives that will enhance opportunities for women coaches without requiring major budget expansions.

One set of strategies should involve improved recruitment, hiring, promotion, and professional development processes. Greater exposure to coaching and administrative career paths should be available through special outreach programs, internships, and volunteer opportunities with younger athletes.¹⁴² Employment-related decision-making should be formalized to reduce reliance on the “old boys network.” Standardizing job requirements and developing coaching certification systems could enhance both the fact and appearance of fairness.¹⁴³ Soccer, the only major sport with a clear certification process, is also the only one in which women’s representation in coaching has not declined.¹⁴⁴ Institutions can also establish formal mentoring programs and provide financial support for attendance at career development programs for women in coaching and athletic administration.¹⁴⁵

A second cluster of strategies should focus on making athletic careers more responsive to family commitments. We do not lack for appropriate models across a wide range of professional, academic, and athletic contexts. Relevant initiatives include:

It bears noting that almost half the participants in our survey considered child care and flexibility in meeting family concerns to be “important,” and another third felt that they were “very” or “most important” in building a successful program. Experience in many workplace contexts suggests that family-friendly initiatives can be highly cost-effective in boosting recruitment, retention, and job satisfaction.¹⁴⁶

A final group of strategies should aim to build more inclusive athletic environments and to hold leadership accountable for the results. A wide array of research finds that a key factor in ensuring equal opportunities is a commitment to that objective, which is reflected in workplace priorities, policies, and reward structures.¹⁴⁷ Athletic department leaders need to acknowledge the importance of diversity and equity, to assess progress in achieving them, and to address obstacles that stand in the way. Institutions tend to get what they measure, and too few athletic departments are measuring gender equity for women coaches and athletic administrators. Decision makers need to know whether men and women are being recruited, hired, and promoted in equal numbers; whether they feel equally well supported in career development; whether they experience gender, race, or sexual orientation bias; and whether work/family initiatives are adequate.

V. CONCLUSION

This is not a modest agenda, but it is essential if we are serious about achieving gender equity in college athletics. Women are unlikely to develop their full potential as athletes unless they see career paths that can make use of their talents. Equalizing leadership opportunities in competitive athletics may also be one step toward achieving the broader objectives of full participation, physical health, and psychological benefits that early leaders of female physical education envisioned. Diversifying the leadership of intercollegiate sports could provide opportunities to rethink its priorities. Title IX at midlife has achieved enormous progress, but its promise remains unmet. The challenge now is to ensure that athletes who have been the statute’s beneficiaries find a way to pass on their skills and commitments to the generations that follow.

Notes

1.  See NAT’L COAL. FOR WOMEN & GIRLS IN EDUC., TITLE IX ATHLETICS POLICIES: ISSUES AND DATA FOR EDUCATION DECISION MAKERS 6 (2007).

2.  LINDA JEAN CARPENTER & R. VIVIAN ACOSTA, WOMEN IN INTERCOLLEGIATE SPORT 10 (2006), available at http://webpages.charter.net/womeninsport/.

3.  Cohen v. Brown Univ., 101 F.3d 155, 188 (1st Cir. 1996), cert. denied, 520 U.S. 1186 (1997); see Int’l Olympic Comm., Olympic Medal Winners, http://www.olympic.org/uk/athletes/results/searchruk.asp (last visited Nov. 5, 2007).

4.  CARPENTER & ACOSTA, supra note 2, at 20.

5.  See Dena Evans, Coaching Gap Widens: A Generation After Title IX, Too Many Female Coaches Still Benched, http://www.womenssportsfoundation.org/cgi-bin/iowa/issues/coach/article.xhtml?record=1119 (last visited Oct. 25, 2007). Coach Evans has been a tremendous help to this project - in framing the initial research question, beta-testing the survey instrument, and distributing the survey to fellow coaches of women’s teams.

6.  CARPENTER & ACOSTA, supra note 2, at 2, 25. Before the merger, women held almost all administrative positions in women’s sports. See Deborah Brake, Revisiting Title IX’s Feminist Legacy: Moving Beyond the Three-Part Test, 12 AM. U.J. GENDER SOC. POL’Y & L. 453, 460-61 (2004); see also Welch Suggs, Women’s Athletic Departments Verge on Extinction, CHRON. HIGHER EDUC., Nov. 19, 2004, at A33 (noting absence of women’s programs).

….

38. Wolverton, supra note 37, at A26. Some evidence suggests that if football, basketball, and ice hockey are excluded, salaries for male and female head coaches would be nearly equal. ROBERT DRAGO ET AL., FINAL REPORT FOR CAGE: THE COACHING AND GENDER EQUITY REPORT 11 (2005), available at http://lser.la.psu.edu/workfam/CAGEfinalreport.

….

58.  CARPENTER & ACOSTA, supra note 2, at 15.

59.  Id.

60.  Id. at 26.

61.  Evans, supra note 5.

62.  CARPENTER & ACOSTA, supra note 2, at 24.

63.  Id. at 20-23.

64.  Table 1 is based on Coach Evans’s data, on file with authors.

65.  KANE, supra note 15, at 121-22; see also Cynthia A. Hasbrook et al., Sex Bias and the Validity of Believed Differences Between Male and Female Interscholastic Athletic Coaches, 61 RES. Q. EXERCISE & SPORT 259 (1990).

66.  Evans, supra note 5.

….

92.  Indeed, even surveys by women’s coaches associations are rare. A comprehensive literature review found only one. See CAROLYN LEHR, WOMEN’S BASKETBALL COACHES ASS’N, BASKETBALL COACHES SURVEY REPORT (2000), available at http://www.ncaa.org/genderequity/resourcematerials/Employment/WBCACoachCompStudy.pdf (documenting disparity between men and women coaches of college basketball teams based on panel survey data from 1994, 1997, and 1999).

93.  An electronic version of the survey was created and carried out utilizing an online survey instrument from www.surveymonkey.com. The complete results are on file with the authors.

94.  Because the URL link to the online survey was distributed via email, website postings, and listserv mailings and because respondents were encouraged to forward the survey link to other coaches of women’s teams, an accurate response rate is not quantifiable here.

95.  We took several steps to reduce the subjective nature of the survey instrument. First, we utilized an online application that would not allow participants to return to prior questions to change answers. See THOMAS MANGIONE, MAIL SURVEYS: IMPROVING THE QUALITY (1995). Furthermore, the survey was anonymous, so that there would be no pressure to submit a less-than-accurate answer. See generally FLOYD FOWLER, IMPROVING SURVEY QUESTIONS: DESIGN AND EVALUATION (3d ed. 2002); LAWRENCE M. FRIEDMAN & STEVEN MACAULAY, LAW AND BEHAVIORAL SCIENCES (2d ed. 1997); SURVEY RESEARCH METHODS: A READER (Eleanor Singer & Stanley Presser eds., 1989).

96.  Five other survey respondents completed the survey but chose not to disclose their gender.

97.  In the CAGE Final Report, based on a 2000 census of those who identified themselves as full-time coaches or scouts in higher education, 65.8% of men were married and 40% had children; none had gay living arrangements. Of women, 29.8% were married, 17.8% had children and 3.2% had lesbian living arrangements. DRAGO ET AL., supra note 38, at 44.

98.  In the CAGE census data, 90.8% of the full-time female coaches and 84.4% of the full-time male coaches were white. Id. at 43.

99.  By contrast, no noteworthy differences emerged with respect to how head coaches and assistant coaches valued these resources—though head coaches were more likely to list other needed resources. The differences between Division I and non-Division I were similarly insignificant—again Division I coaches were more likely to list other needed resources than their non-Division I counterparts.

100.  See NAT’L COLLEGIATE ATHLETICS ASS’N, 2006–07 NCAA DIVISION I MANUAL § 4.02.4 (provision adopted Nov. 1, 2001).

101.  Similarly, no significant differences emerged between head and assistant coaches or between Division I and non-Division I coaches.

102.  See NCAA Women Coaches Academy Website, http://www.coachesacademy.org/ncaa.php (last visited Nov. 9, 2007).

103.  The most comprehensive study involved focus groups with about 40 coaches and 40 student athletes as well as an analysis of U.S. Census data to estimate characteristics of male and female college coaches, such as work hours, marital status, sexual orientation, and dependent children. See DRAGO ET AL., supra note 38. A study of the relationship between Title IX compliance and coaching turnover rates relied on 273 questionnaires. Michael Sagas & Paul Batista, The Importance of Title IX Compliance on the Job Satisfaction and Occupational Turnover Intent of Intercollegiate Coaches, 15 APPLIED RES. IN COACHING & ATHLETICS ANN. 15 (2001). Other surveys rely on still smaller data sets. See Sue Inglis et al., Multiple Realities of Women’s Work Experiences in Coaching and Athletic Management, 9 WOMEN IN SPORT & PHYSICAL ACTIVITY J. 1 (2000) (relying on interviews with eleven women).

104.  CATALYST, WOMEN “TAKE CARE,” MEN “TAKE CHARGE:” STEREOTYPING OF BUSINESS LEADERS EXPOSED (2005); Linda L. Carli & Alice H. Eagly, Overcoming Resistance to Women Leaders: The Importance of Leadership Styles, in WOMEN AND LEADERSHIP: THE STATE OF PLAY AND STRATEGIES FOR CHANGE 127, 128 (Barbara Kellerman & Deborah L. Rhode eds., 2007); Peter Glick et al., Ambivalent Sexism, in ADVANCES IN EXPERIMENTAL SOCIAL PSYCHOLOGY 115, 115 (Mark P. Zanna ed., 1999).

105.  Carli & Eagly, supra note 104; Laurie A. Rudman & Stephen E. Kilianski, Implicit and Explicit Attitudes Toward Female Authority, 26 PERSONALITY & SOC. PSYCHOL. BULL. 1315 (2000).

106.  LINDA BABCOCK & SARA LASCHEVER, WOMEN DON’T ASK: NEGOTIATION AND THE GENDER DIVIDE 87-88 (2003); Alice H. Eagly & Steven Karau, Role Congruity Theory of Prejudice Toward Female Leaders, 109 PSYCHOL. REV. 574 (2002).

107.  JEANETTE N. CLEVELAND ET AL., WOMEN AND MEN IN ORGANIZATIONS: SEX AND GENDER ISSUES AT WORK 106, 107 (2000); D. Anthony Butterfield & James P. Grinnell, Reviewing Gender Leadership, and Managerial Behavior: Do the Decades of Research Tell Us Anything?, in HANDBOOK OF GENDER AND WORK 223, 235 (Gary N. Powell ed., 1998); Alice H. Eagly et al., Gender and the Evaluation of Leaders, 111 PSYCHOL. BULL. 17 (1992).

108.  Kane, supra note 15, at 125.

109.  DRAGO ET AL., supra note 38, at 29-31.

110.  Id.

111.  For homophobic biases, see id. at 5; Kane, supra note 15, at 125-35.

112.  DRAGO ET AL., supra note 38, at 5, 60; Kane, supra note 15, at 135-37; Robin Wilson, Where Have All the Women Coaches Gone?, CHRON. HIGHER EDUC., May 4, 2007, at 40, 42.

113.  See generally Marilyn B. Brewer & Rupert J. Brown, Intergroup Relations, in THE HANDBOOK OF SOCIAL PSYCHOLOGY, 554, 554-94 (Daniel T. Gilbert et al. eds., 1998); Susan T. Fiske, Stereotyping, Prejudice and Discrimination, in THE HANDBOOK OF SOCIAL PSYCHOLOGY, supra, at 357, 357-414; Laura M. Graves, Gender Bias in Interviewers’ Evaluations of Applicants, in HANDBOOK OF GENDER AND WORK, supra note 107, at 145, 154-55; Barbara Reskin, Rethinking Employment Discrimination and its Remedies, in THE NEW ECONOMIC SOCIOLOGY: DEVELOPMENTS IN AN EMERGING FIELD 218, 218-44 (Mauro Guillen et al. eds., 2000).

114.  Martha Foschi, Double Standards in the Evaluation of Men and Women, 59 SOC. PSYCHOL. Q. 237 (l996); Jacqueline Landau, The Relationship of Race and Gender to Managers’ Rating of Promotion Potential, 16 J. ORG. BEHAV. 391 (1995). In experimental settings, resumes are rated more favorably when they carry male rather than female names. See BABCOCK & LASCHEVER, supra note 106, at 94; Rhea Steinpreis et al., The Impact of Gender on the Review of the Curriculum Vitae of Job Applicants and Tenure Candidates: A National Empirical Study, 41 SEX ROLES 509 (1999).

115.  Deborah L. Rhode & Barbara Kellerman, Women and Leadership: The State of Play, in Women and Leadership, supra note 104, at 10-11; see also AM. BAR ASS’N COMM’N ON WOMEN IN THE PROFESSION, VISIBLE INVISIBILITY: WOMEN OF COLOR IN LAW FIRMS 17 (2006) (finding that 62% of women of color and 60% of white women felt excluded from informal networks); Christopher J. Walker, Female Entrepreneurship and Business Consortiums: Prospective Solutions for Argentina’s Economic Challenges, 16 J. INT’L & PUB. AFF. 94, 96-97 (2005) (finding similar trends for women entrepreneurs and business leaders). For surveys of upper-level American managers, which find that almost half of women of color and close to a third of all women cite a lack of influential mentors as a major barrier to advancement, see CATALYST, WOMEN IN CORPORATE LEADERSHIP: PROGRESS AND PROSPECTS 37, 42 (1996); CATALYST, WOMEN OF COLOR IN CORPORATE MANAGEMENT 21 (2000). See generally IDA O. ABBOTT, NAT’L ASS’N FOR LAW PLACEMENT, THE LAWYERS’ GUIDE TO MENTORING (2000); Belle Rose Ragins, Gender and Mentoring Relationships: A Review and Research Agenda for the Next Decade, in HANDBOOK OF GENDER AND WORK, supra note 107, at 347, 350-62; Timothy O’Brien, Up the Down Staircase, N.Y. TIMES, Mar. 19, 2006, at A4.

116.  Inglis et al., supra note 103, at 8; Wilson, supra note 112, at 42.

117.  Kane, supra note 15, at 121, 124.

118.  Id. at 121-22 (citing surveys).

119.  JAY COAKLEY, SPORT IN SOCIETY 220 (7th ed. 2001).

120.  DRAGO ET AL., supra note 38, at 13; Kane, supra note 15, at 123.

121.  Warren A. Whisenant et al., Success and Gender: Determining the Rate of Advancement for Intercollegiate Athletic Directors, 47 SEX ROLES 485 (2002). Women also have had difficulty obtaining inter-scholastic athletic director positions at the high school level. Warren A. Whisenant, How Women Have Fared as Interscholastic Athletic Administrators Since the Passage of Title IX, 49 SEX ROLES 179 (2003).

122.  Kane, supra note 15, at 124; see also DRAGO ET AL., supra note 38, at 8, 14 (noting lack of support and mentoring for collegiate women athletes).

123.  Kane, supra note 15, at 131.

124.  Sagas & Batista, supra note 103, at 33, 37.

125.  See BUREAU OF LABOR STATISTICS, AMERICAN TIME USE SURVEY (2004); Donald G. McNeil, Real Men Don’t Clean Bathrooms, N.Y. TIMES, Sept. 19, 2004, at E3.

126.  SYLVIA A. HEWLETT, CTR. FOR WORK-LIFE POL’Y, HIGH ACHIEVING WOMEN 2 (2001); SYLVIA A. HEWLETT, CREATING A LIFE: PROFESSIONAL WOMEN AND THE QUEST FOR CHILDREN 143 (2002).

127.  Sylvia A. Hewlett & Carolyn Buck Luce, Off Ramps and On Ramps: Keeping Talented Women on the Road to Success, HARV. BUS. REV., Mar. 2005, at 43-45; Claudia Wallis, The Case for Staying Home, TIME, Mar. 22, 2004, at 52.

128.  DRAGO ET AL., supra note 38, at 4-5, 18, 49.

129.  Wilson, supra note 112, at 43.

130.  Id. at 41.

131.  The average hourly earnings of full-time, full-year male coaches was $16.22 compared with a national average of $19.99 for male employees. The average hourly earnings for female coaches was $12.88, compared with $14.94 for female employees. Id. at 40.

132.  COMM’N ON OPPORTUNITY IN ATHLETICS, supra note 34, at 22.

133.  Brake, supra note 6, at 467.

134.  Rhode, supra note 13, at 15-16; John C. Weistart, Can Gender Equity Find a Place in Commercialized College Sports?, 3 DUKE J. GENDER L. & POL’Y 191, 225, 249-51 (1996); see also Sudha Setty, Leveling the Playing Field: Reforming the Office for Civil Rights to Achieve Better Title IX Enforcement, 32 COLUM. J.L. & SOC. PROBS. 331, 350-52 (1999) (discussing treatment of football).

135.  Rhode, supra note 13, at 17 (summarizing comments about resource constraints by David Black, Deputy Assistant Secretary for Enforcement, Office for Civil Rights).

136.  See DEBORAH L. RHODE, IN PURSUIT OF KNOWLEDGE 153-54 n.14 (2006).

137.  John J. Cheslock & Deborah J. Anderson, Lessons from Research on Title IX and Intercollegiate Athletics, in SPORTING EQUALITY, supra note 48, at

138.  138. Id.

139.  Rhode, supra note 13; Brake, supra note 6; Weistart, supra note 134, at 249-51.

140.  Changes in antitrust law to permit such collective action may be a necessary first step. See Ralph D. Mawdsley & Charles J. Russo, Antitrust Law and Limiting Coaches’ Salaries, 131 EDUC. L. REP. 895 (1999).

141.  Cheslock & Anderson, supra note 137, at 138.

142.  DRAGO ET AL., supra note 38, at 25.

143.  Id. at 50-51.

144.  Id. at 28.

145.  For discussion of mentoring programs, see Rhode & Kellerman, supra note 115, at 29-30. For discussion of coaching and administrative programs, such as the NCAA Women Coaches Academy, see DRAGO ET AL., supra note 38, at 52. Several respondents in our survey commented on the value of such programs.

146.  Deborah L. Rhode & Joan Williams, Legal Perspectives on Employment Discrimination, in SEX DISCRIMINATION IN THE WORKPLACE 235 (Faye J. Crosby et al. eds., 2007).

147.  CATALYST, ADVANCING WOMEN IN BUSINESS 6, 12-13 (1998); KAREN KLENKE, WOMEN AND LEADERSHIP 173 (1996); Rhode & Kellerman, supra note 115, at 27; Cecilia L. Ridgeway & Shelley J. Correll, Limiting Inequality Through Interaction, 29 CONTEMP. SOC. 118 (2000).

….

Discussion Questions

*The Policy Interpretation is designed for intercollegiate athletics. However, its general principles, and those of this Clarification, often will apply to elementary and secondary interscholastic athletic programs, which are also covered by the regulation. See 44 Fed. Reg. 71413.