Titile Ix Essay, Research Paper

Sex. That one little word has led to a mini-revolution in all aspects of a girl’s education, from Kindergarten to Graduate School, all across the nation. In 1972, Title IX was adopted as the landmark legislation for prohibition of gender discrimination in schools, and was signed into law, by President Richard Nixon, on June 23. This legislation encompasses both academics and athletics. Title IX reads: “No person in the U.S. shall, on the basis of sex be excluded from participation in, or denied the benefits of, or be subjected to discrimination under any educational program or activity receiving federal aid.” Since 1972, many attempts have been made to alter the appearance and effect of Title IX.

On May 20, 1974, Senator Tower proposed an amendment to Title IX which would allow revenue-producing sports to be exempt from being tabulated when determining a school’s Title IX compliance. This proposal was rejected. [1] Two months later, Senator Javits proposed an amendment which would require the Department of Health, Education and Welfare (HEW) to issue the Title IX regulation including the phrase “with respect to intercollegiate athletic activities, reasonable activities considering the nature of particular sports.” This amendment was adopted. [1] The following June, Representative O’Hara introduced House Bill H.R. 8394, proposing to use the revenue-producing sports money to first support that sport, then to help support the other sports. This bill died in committee, as did a July, 1977 proposal by Senators Tower, Bartlett and Hruska to exclude revenue-producing sports from Title IX coverage. [1] In 1975, HEW issued the final Title IX regulation (34 C.F.R. Part 106), which was signed into law, by President Gerald Ford, and was effective as of July 21, 1975. This final version of the act created a three-year window for institutions to comply. Finally, in 1980, when the Department of Education was established, they were given Title IX to oversee through the Office of Civil Rights. [1] Through all of this, the goal of Title IX has been and is,

“to ensure that Federal funds are not utilized for and do not support sex-based discrimination, and that individuals have equal opportunities, without regard to sex, to pursue, engage or participate in, and benefit from academic, extracurricular, research, occupational training, employment, or other educational programs or activities.” [2]

Despite the 1975 regulations schools and courts still debated whether the language of Title IX itself included their athletic departments at all. At issue was the Title IX, ? 1681(a), phrase dealing with funding: sex-based discrimination in “any education program or activity receiving Federal financial assistance violated Title IX.” [3] Depending on whether a party was fighting for or against gender equity compliance under Title IX in the athletics area, that party argued for, respectively, an “institution-wide” or “program-specific” view of this phrase. Supporters of the latter view argued that Title IX forbade gender discrimination only in those specific “programs or activities” receiving direct federal funding. Thus, if an athletic program did not receive any direct federal funding, the regulations and compliance guidelines of Title IX did not apply to it. As seen in Othen v. Ann Arbor School Board, 507 F. Supp. 1376 (E.D. Mich. 1981), where a student was cut from the golf team. The students dad brought suit alleging that she was cut because of her sex. They brought suit under Title IX, but it was found that the Ann Arbor School District did not receive financial aid from the government, thus they did not fall under the Title IX regulation and could not be stopped from discriminating in the Golf Team’s selection process. [4] This argument severely limited the number of athletic departments falling under the auspices of Title IX, as few of them received any direct financial aid. [5]

In contrast, those supporting the institution-wide viewpoint argued that an entire educational institution falls under the requirements of Title IX if any part of the institution was the recipient of federal monies. Because almost every American institution of higher education receive some type of federal aid or admits students who receive federal loans, this interpretation brought almost all interscholastic and collegiate athletic departments within Title IX’s grasp.

Advocates of both perspectives asserted that Title IX’s limited legislative history supported their view. Institution-wide proponents also argued that direct financial funding intrinsically had no bearing on whether programs were benefiting from federal money. Specifically, they used a “release theory”, finding that when the federal government aids one program in an institution, that program is able to “release” money to other programs in the institution. In essence, this “other”, indirectly funded program (such as an athletic department) was still benefiting from federal resources.

As a result, the first major court case to try Title IX was Grove City v. Bell, 465 U.S. 455 (1984). In this case, the Supreme Court ruled to remove the applicability of Title IX in athletics programs by ruling that the only programs which must comply with Title IX are those programs which are directly receiving Federal financial assistance. [6] On March 22, 1988, Grove City V. Bell was overruled when Congress overrode a Presidential Veto, by Ronald Reagan, to enact the Civil Rights Restoration Act Of 1987. This act made it law that any educational institution which receives any Federal aid be bound by Title IX in its entirety, not just those programs receiving the aid. This act, under (2)(A), meant a

“college, university, or other postsecondary institution, or a public system of higher education . . . any part of which is extended Federal financial assistance,” must be in compliance with Title IX. [7] Despite the fact that the Restoration Act failed to specifically mention sports in its codification, the record of congressional debates left little room for doubt that among its goals was the creation of more athletic opportunities and equality for female athletes. [8]

On February 2, 1992, in the case of Franklin vs. Gwinnett County Public Schools, 501 U.S. 1204 (1991), the Supreme Court further altered Title IX to allow for punitive damages when intentional action was taken to avoid Title IX compliance. [9] The case involved a high school girl who said she was sexually harassed and abused by a teacher. She filed for damages in Federal District Court, which dismissed the complaint, saying Title IX does not authorize an award of damages. The Court of Appeals agreed. But the U.S. Supreme Court held that compensatory and punitive damages were available under Title IX. This case was crucial in putting “teeth” into Title IX, allowing women to find lawyers willing to take their cases because of the possibility of an award for damages, and threatening colleges in their pocketbooks if they refused to comply with Title IX. [9] Additionally, Franklin makes clear that damages are essential to ensuring that Title IX’s mandate of equal educational opportunity is realized, since damages may provide the only concrete method of compensating a victim of sex discrimination.

In addition to Title IX, three pieces of supporting and related legislation have been enacted. First, the Women’s Educational Equity Act of 1974 provides for federal financial and technical support to local efforts to remove barriers for females in all areas of education through, for example, the development of model programs, training, and research. Then, Title IV of the Civil Rights Act of 1964 provides for support to schools to comply with the mandate for nondiscrimination by providing funds for regional Desegregation Assistance Centers and grants to state education departments for providing more equitable education to students. Finally, the 1976 amendments to the Vocational Education Act of 1963 require states to act affirmatively to eliminate sex bias, stereotyping, and discrimination in vocational education.

In 1975, Congress directed the Secretary of Health, Education, and Welfare to make the regulations known for implementing Title IX. These regulations specifically prohibited gender discrimination in “intercollegiate . . . athletics“, [10] and most notably included a section entitled “equal opportunity.” [11] Under this section, HEW related that a “recipient” of federal funding “shall provide equal athletic opportunity for members of both sexes.” In assessing whether a recipient were indeed offered equal opportunities, the regulation provided that the Director of HEW would consider, along with other factors:

(1) Whether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes;

(2) The provision of equipment and supplies;

(3) Scheduling of games and practice time;

(4) Travel and per diem allowance;

(5) Opportunity to receive coaching and academic tutoring;

(6) Assignment and compensation of coaches and tutors;

(7) Provision of locker rooms, practice and competitive facilities;

(8) Provision of medical and training facilities and services;

(9) Provision of housing and dining facilities and services;

(10) Publicity. [12]

Equally important, and appended to the end of this list, was a stipulation by HEW that “unequal expenditures” for men’s and women’s teams would not necessarily “constitute noncompliance with this section;” however, HEW could consider a failure to provide adequate funding for teams of one sex in “assessing equality of opportunity for members of each sex.” [11] Thus, at this stage in the statutory interpretation of Title IX, the administrative agency appeared to focus more aggressively on “equal opportunity” aspects of compliance as opposed to “equal expenditures.”

Following the initial issuance of the regulations, HEW received more than one hundred discrimination complaints covering more than fifty schools. [13]

The Policy Interpretation found that the 1975 regulations suggested three areas of compliance necessary to avoid a Title IX violation. It summarized these areas as (1) compliance in financial assistance (scholarships) based on athletic ability; (2) compliance in other program areas (equipment and supplies, practice times, etc.); and (3) compliance in meeting the interests and abilities of male and female students. [14] HEW’s goals in adopting this framework were to foster compliance with Title IX by ensuring that “institutions remain obligated . . . to accommodate effectively the interests and abilities of male and female students with regard to the selection of sports and levels of competition available.” This would entail, in most instances, “development of athletic programs that substantially expand opportunities for women to participate and compete at all levels. How were institutions to discern whether or not they were “effectively accommodating” these interests and abilities? The Policy Interpretation stated that HEW would begin by examining three factors under this compliance standard to assess whether interests and abilities were being met. First, was the school determining the athletic interests and abilities of its students accurately, ensuring that its “methods of determining interest and ability” were not “disadvantaging the members of an underrepresented sex?” [15] Second, what selection of sports were being offered, taking into account the difference between contact and non-contact sports? [16] Third, and what proved to be the most important aspect of the Policy Interpretation for recent cases dealing with Title IX, was whether adequate levels of competition were being made available to both sexes, including the opportunity for team competition. [17]

When Title IX was looked at under the U.S. Constitution, The Supreme Court determined that it does not violate the First Amendment. Also, the Court “expressly rejected the notion that education is a fundamental right, protected by the Fourteenth Amendment.” [16] The court said “in the area of education, participation in interscholastic and intercollegiate activities is not a constitutionally protected civil right.” [16] Even though extracurricular activities are not considered a fundamental constitutional right, when a school provides these activities, it has to do so on an equal, though not necessarily identical, basis. “Absolute equality of opportunity in every sport is not the mandate.” [16] “The court further concluded that “interscholastic athletics is not a property right.”” [16]

In Hoover v. Meiklejohn, 420 F. Supp. 164 (D. Colo. 1977), the court decided that totally denying a female public high school student the opportunity to play soccer, was a equal protection violation under the Fourteenth Amendment. [16] “However, the court noted

that “there is no right to a position on the athletic team, but only a right to compete for it on equal terms.”” [23]

Most recently, in Communities for Equity v. Michigan High School Athletic Association, 80 F.Supp.2d 729, 141 Ed. Law Rep. 646 W.D.Mich, a sex discrimination case, representatives of high school girls in Michigan filed a complaint alleging that the Michigan High School Athletic Association (MHSAA) is violating Title IX and the Equal Protection Clause of the Fourteenth Amendment. They contend that MHSAA has violated the rights of girls in the school system by refusing to sanction additional sports for high school girls, requiring girls to play certain sports in non-traditional seasons (which reduces participation opportunities for high school girls by shortening playing seasons, thereby making it impossible to participate in club competitions and all-star competitions involving players from other states, and negatively affecting their chances of being recruited for collegiate-level sports programs), and providing inferior practice and playing facilities for post-season tournaments held in certain girls sports. MHSAA moved for summary judgment, arguing that: (1) it is not subject to Title IX because it does not receive federal funds; (2) it is not a state actor subject to the Constitution; (3) the individual defendants cannot be sued in their official capacities; and (4) plaintiffs do not have standing to bring this case. [18]

The United States Department of Justice filed an amicus brief in opposition to the defendants’ motions, arguing that (1) MHSAA, by assuming controlling authority over interscholastic athletics from member schools which receive federal funds, is subject to Title IX; (2) in Michigan the regulation of interscholastic athletics is a function reserved to the state, and MHSAA is therefore considered a state actor; (3) individual defendants may be sued in their official capacities because they exercise administrative control over MHSAA; and (4) the court has already found standing. [18]

On January 21, 2000, the court denied the defendants’ motions to dismiss, finding that MHSAA was a state actor and finding the question of whether MHSAA had in fact assumed controlling authority over interscholastic athletics from member schools to merit the court’s further consideration. On September 7, 2000, the court granted the United States’ motion to participate as amicus curiae at trial, which is scheduled for February, 2001. [18]

After a Title IX violation has been established, it is important to figure out what can be done about it. First, the school can discontinue a men’s team. This approach renders the opportunity equal for both sexes, but the underlying goal of Title IX is to foster female participation, not to deny athletic opportunity to both sexes. Second, the school can let the female try out for the men’s team, thereby permitting both sexes to compete on the same team. Finally, they can establish a separate team for the girls, provided it is equivalent to the men’s team. “An equivalent program includes comparable facilities, equipment, supplies, uniforms, coaches, tutors, playing time, practice time, medical care, and publicity.” [16]

In O’Connor v. Board of Education of School District Number 23, 545 F. Supp. 376 (N.D. Ill.) 1982, the plaintiff was an eleven-year-old girl who wanted to play on the boys’ basketball team. The school had a girls’ basketball team. An athletic association rule prohibited the plaintiff to try out for the boy’s team. “The school district argued that separate teams maximize the participation of both sexes in interscholastic sports, and that the separate team policy is substantially related to this goal. By maintaining separate programs, defendants enable girls to participate in interscholastic sports.” The court said, that because gender discrimination was an issue, one must evaluate the case while considering the physical differences between boys and girls at age eleven.

The girl argued that separate teams did not maximize the opportunities for either sex. The court found no reason or rule to make it necessary for this girl, or any other talented female athlete, to be able or to have to be allowed to try out for the boys’ team. [19]

No one is arguing that Title IX regulations require, and it has not been held, that girls be provided with a exact duplicate of the men’s program, or that schools spend the same amount of money on each program. In fact, many school districts face economic problems and are thus trying to reduce their spending. As schools look at their athletic departments to cut costs, the decision as to which programs stay and which are cut will be examined to ensure that schools comply with Title IX. [16]

One other main issue that is wrapped in Title IX is the issue of contact sports. The general rule is that Title IX does not require a school to allow the opposite sex to participate in a contact sport unless there are enough members of that sex to field their own team. However, like most rules, there are exceptions. Some courts have allowed girls to play on contact sports teams with boys. “Rationale for the rules and regulations prohibiting same sex teams have included the following: the physical, biological and psychological differences between males and females, promotion of the safety of the players; promote athletic opportunities for women and/or preserve emergent female sports programs from domination by male athletes, or to maintain the competitiveness within the women’s programs.” [16] The courts also make it abundantly clear that the classification of a sport as a contact sport must be reasonable.

The courts have considered many sports when considering the “contact sport” issue. The first sport to look at is football. Football has traditionally been regarded as a contact sport. Even though some courts have allowed girls to play on all boys football teams, this is the exception, not the rule. However, “Title IX’s regulations leave each school free to choose whether co-educational participation in a contact sport will be permitted,” unless there is a “reason for such an exclusion, as for example where peculiar safety and equipment requirements demand it, . . . or perhaps where excluding males is necessary to redress past inequality and to foster female participation” [16]

The next sport to look at is Basketball. Basketball has also traditionally been regarded as a contact sport, and it falls victim to the same regulations and rules as football. However, unlike football, many schools offer a girls’ team. Whether or not a girl can go out for the boys’ team when a girls’ teams is provided is up to the school district. Courts have, however, prevented a female from forcing the issue and disallowed her, pursuant to the schools ruling, from playing on the boy’s team when a girls team was provided for her to play on. [19]

Baseball is another popularly litigated sport. Baseball is one of the sports the jurisdictions are split over. Some jurisdictions make the sport a contact sport, and some do not. Many schools offer softball as the female equivalent of baseball, and while some courts have accepted this as the equal, some have not. It can be argued that there is a substantial difference in men’s “baseball” and women’s “softball”, since the two sports are played with a variety of differences. For example, the softball is much larger than the baseball and it thus easier to hit and catch. Also, softball if played with 4 “men” in the outfield instead of three, and is often played in seven inning intervals as opposed to baseball’s traditional nine. Upon close examination, it is obvious that the two sports are just that, two sports, two different sports. One court has agreed with this observation, in Israel v. Secondary Schools Activities ,388 S.E.2d 480, (W. VA. 1985), the Virginia court was careful to point out the differences in the two sports, and allowed the female plaintiffs to play men’s baseball. [20]

Soccer, Field Hockey, Ice Hockey, and Rugby have all been ruled contact sports, as have wrestling and boxing. The courts in the wrestling cases decided that girls on the wrestling team violated the goal of health and safety protection of the girls. However, it must be noted that there is still a school discretion involved in making the decision. This year at the Michigan State Wrestling Tournament (an invitation only tournament where the best of the best meet), there were two girls present and wrestling. One of the girls was knocked out in the first round, and one made it all of the way to the semi-finals.

With all of the major four, and some others, falling to the side of contact sports, what can be considered non-contact? Tennis, Track, Swimming, Golf and Cross-Country Skiing have all been traditionally classified as non-contact. There are many other sports the court has not yet ruled on, but with the “contact sports” exception, it is getting easier and easier for school districts to discriminate against females and still be in compliance with Title IX.

“An important issue remains unsettled, namely, on what type of team may a male or female participate. Presently, the first inquiry to be made is whether the team involves a contact or non-contact sport. The second inquiry to be made is whether there exists only a men’s team, or only a women’s team, or both. The result is eight generalizations:

(1) If there is a men’s team in a contact sport, but no women’s team, generally women may play on the men’s team on constitutional grounds, but not Title IX grounds, unless the school voluntarily provides for co-educational participation on the designated contact sport;

(2) If there is a men’s team in a contact sport and a women’s team, generally women may not play on the men’s team, on both Title IX and constitutional grounds;

(3) If there is no men’s team in a contact sport, but a women’s team, men could be prohibited from participating pursuant to Title IX; however there is little case law addressing this unusual situation;

(4) If there is a men’s team in a contact sport, and a women’s team, men could be prohibited from participating under Title IX. There appears to be an absence of case law pertaining to this scenario;

(5) If there is a men’s team in a non-contact sport, but no women’s team, generally women may play on the men’s team, pursuant to Title IX and constitutional theories;

(6) If there is a men’s team in a non-contact sport and a women’s team, women would probably not be allowed to participate on the men’s team pursuant to Title IX;

(7) If there is no men’s team in a non-contact sport, but a women’s team, generally men may not play on the women’s team pursuant to Title IX as the men have not been historically disadvantaged against; and

(8) If there is a men’s team in a non-contact sport, and a women’s team, generally men may not play on the women’s team, pursuant to Title IX. There is no case law regarding this unusual fact pattern.

[16]

The third element to consider is the issue of “level of competition”. The object of Title IX is to ensure “adequate levels of competition” are available to both sexes, including the opportunity for team competition. Thus, if there is a girls basketball team at a high school, but it does not have games, this would not make the school in compliance with Title IX. Schools often try to get around this issue by offering sports in non-traditional seasons. The courts have split on the issue, depending mostly upon if there are other schools who are offering the sport in the same season, thus allowing competition. The best way for a school to be in compliance with the “level of competition” prong of Title IX is to offer the girls’ sports during the proper season and to allow them to compete in the district with other schools, just as the boys teams do. While this does not require separate freshman, junior varsity, and varsity teams for the girls, it does require there to be a team.

With all of the proponent’s of Title IX talking about the good things it has done for women’s sports, it is important to remember that there are two sides to every coin. While Title IX has increased the number of girls participating in High School athletics from 294,015 in 1971, to 2,240,461 in 1995, and increased the amount of spending on females interscholastic sports from $0 in 1971, to 1.8 million in 1993, it has had ill effects also. [21]

The way Title IX is being used and applied, it has turned into a “quota system”. “According to a recent gender-equity study by the National College Athletic Association (NCAA), college women have gained more than 5,000 sports opportunities in the past five years, while men have lost 17,000” [22] Which sports are being cut? Non-Revenue creating, expensive, men’s sports. These are sports like Gymnastics, Wrestling, Golf, and Crew. With Football and Basketball being the two sports which generate the most revenue, followed closely by hockey then baseball to round out the “big four”, they are what is known as “safe sports”, sports which make so much money they can not be cut. The biggest problem is football. This is a guys sport, there is no equivalent to football for women. Football controls a great majority of the scholarships available from a major university, and it creates the most revenue. In order to create that revenue, the school relies on having a team, which is brought in through those scholarships. With out the gross amount of football scholarships, there may not be as much income. However, the downside to this is it limits the number of scholarships available to the “minority sports” men play. Hence the fact that many of those minority sports have been cut. [22]

Where does this “quota” come from? The quota in question is set forth in the U.S. Department of Education’s guidelines on how Title IX should be enforced in college sports. Colleges are required to provide “equal opportunity in the selection of sports and levels of competition” by meeting one of three tests:

* Having roughly equal percentages of female athletes and female undergraduates, a condition known as “substantial proportionality.”

* Having a “history and continuing practice” of adding more teams and roster spots for women.

* Proving that the college is “fully and effectively accommodating the interests and abilities” of women.

Substantial proportionality, the first option, essentially establishes an absolute limit on the number of male athletes in an athletics department. Because more men than women typically go out for sports, that test discriminates against men. Even if colleges choose to comply with Title IX by means of the second or third options, they will have to continue expanding programs until they find themselves at substantial proportionality. Many athletics departments have tried to meet the substantial-proportionality test by eliminating men’s teams or imposing caps on the number of players allowed on the rosters of existing men’s teams. Last year, Miami University in Ohio, Brigham Young University, and the University of New Mexico all eliminated men’s teams, including their wrestling programs. Such moves, critics say, have cost thousands of men the opportunity to play sports in college, without giving women any benefits. [22]

Why is Title IX having this result? When the fed’s made Title IX, they made a huge assumption, they assumed that notwithstanding discrimination, men and women would have the same interests. When you assume something crazy, you get even crazier results. [23] Title IX mandated the number of men and women who participate in sports to be equal. Unfortunately for the men, the women’s interest is not as high as the men’s. There have been an amazing number of men’s program’s cut from major universities, programs with deep roots in the college.

* Syracuse University – University had a men’s wrestling team since 1922. Last January, the university announced that it was pulling the plug on the team, a team that was nationally ranked, and also dumping its men’s gymnastics program

* UCLA – the men’s swimming team got the ax, a program that produced 22 Olympic competitors

* Boston University – Division I football was killed, ending a 91-year run

* Illinois State – cut wrestling and men’s soccer

*Notre Dame – cut wrestling

*Princeton – cut wrestling

*Michigan State University – Cut men’s gymnastics

*Miami University of Ohio – Cut Wrestling

*Brigham Young – Cut Wrestling

*University of New Mexico – Cut Wrestling

“In a recent two year period, 24 colleges and universities did away with men’s wrestling. Another 31 dropped men’s golf. Men’s gymnastic teams on campus, numbering 133 in 1975, are down to less than 30.” [23] All of this, done to meet the gender proportionality mandate.

While this is mostly a NCAA phenomenon, it has its roots at the high school level. High schools have the responsibility of preparing their students for college, and assuring their students get in. In order to better assure a student a chance at a non-academic scholarship, high schools baby their football programs and following in the NCAA footsteps, they cut the minority sports. Title IX has become nondiscrimination to women and the epitome of discrimination to men. [22]

“With college sports, it’s the government funds on campus that make schools subject to the coercive dictates of regulators. With malls and hunting, there’s also the clear existence of government funds, with roads, licensing, police, sewers, etc. If the bureaucrats are right about the sexes being no different, i.e., if women aren’t hard-wired to prefer shopping over hunting, why not install federal equity regulators at the mall entrances to police gender proportionality? No woman gets admitted until a man shows up.

The same with hunting. No man gets to go into the woods until a woman shows up. It’s just like the gym at Princeton. No man suits up until a woman decides she wants to play ball.” [23]

Is this nondiscrimination? Certainly not.

How can we “fix” Title IX? First, we can count the teams, not the roster spots when figuring out compliance. Every sport is different in the amount of players on the field at one time. Take for example football. Football demands 11 players on the field at one time, and that’s just for either offense or defense. So you’re really looking at 22. Then you have to have back-ups for those people, plus you have your special teams players. As for women’s volleyball you maybe have 30 people on the whole team. It would make it much easier on men’s teams and athletic programs if we did count teams instead of roster spots. It would allow men’s sports to stay because now athletic departments wouldn’t have to create new sports just to comply with title IX. This would leave the men’s sports in place, instead of dropping them, which has done in athletic programs in previous years.

We could also not count football in measuring proportionality. You can’t name a women’s sport that carries 100+ people on its roster. If we did count football in measuring proportionality, it would just hurt men’s sports, because women’s groups would look at the statistics and say, well the men’s department has 150 more athletes than the women’s department, it’s not fair. In which case the athletic department would probably shut down a men’s sport, just to satisfy women’s groups and their title IX compliance. In the end, it’s just going to hurt men’s sport if we do count football in measuring proportionality.

The third possibility is to not count revenue-producing sports in measuring proportionality. This would help keep our male/female proportionality closer to 50/50 as far as Title IX is concerned.

We could also make it law that schools can not bring themselves into compliance by cutting men’s sports. Girls want opportunities, but most do not want them at the expense of them men. While some feminist organizations would find fault in making a law to prohibit what has become known as “reverse discrimination”, taking from the men to make the women happy is just that… discrimination. Just because men have not been the ones who have traditionally been discriminated against, does not make them incapable of being the victim of discrimination.

One other possibility, which the authorities tend to shy away from, is the removal of gender from all athletics. Our society seems to put so much emphasis on equality, why not make a true system of equality? If everyone who wanted to play athletics had to go out for the same team, it would make the level of competition the same across the boards. This process would weed out the week athletes and pit those who are vying for important scholarships directly against one another. This process would stop the ideas of inequality, since if there is only one program, the two genders would have pure equality. Those who are against this process claim this is unfair to girls, that they are the weaker sex and can not compete with the boys due to gender and genetic makeup. However, if you buy into the idea that a girl can not keep up with the boys, that a girl is not as “athletic” as the boys, are you not also buying into the idea that the feds were wrong when they made their assumptions about the interest level of the girls? Would less girls be interested in playing baseball if they had to play with the boys, what about basketball? It can be argued that those girls who are serious about their sport would not be deterred, and in fact may welcome this level of competition. If you disagree with leveling the playing field, with letting the girls compete directly with the boys, are you not buying into the idea of “separate but equal”? Does our society not shy away from “separate but equal”? When the African-Americans were being subjected to the effects of “separate but equal”, courts said it was anything but equal, and what did they do, they mandated desegregation, and its working. The female athletes are no more equal under Title IX than the African-Americans were under their version of “separate but equal”, the only answer is to desegregate sports as a whole.

No matter which positions you take on the issues of Title IX, you must agree that its effects have been profound. Some good things have come from Title IX, some bad, some indifferent, but regardless of how you feel about what the act has done, it can not be argued that it has not made a substantial change in our society and how we view the education of females. The mere idea that sports have become the number one litigated issue of Title IX shows how much our society focuses on leisure activities and how much more it could focus on academic education. After all, if these students were not fighting for athletic scholarships, but instead were fighting for academic scholarships, wouldn’t the arguments be totally different? In time the issues surrounding Title IX, as well as the actual act itself have changed, and they will continue to change in the future. Until society has zero discrimination, regardless of age, sex, race, or disability, the courts will have issues such as Title IX to contend with. One can only hope that the future looks brighter than the past, and hope to attribute it to acts such as Title IX.

1. http://bailiwick.lib.uiowa.edu/ge/history.html

2. http://www.nrc.gov/NRC/CFR/FR/20000830/august30.html

3. 20 U.S.C. ? 1681(a).

4. Othen v. Ann Arbor School Board, 507 F. Supp. 1376 (E.D. Mich. 1981)

5. Title IX and Intercollegiate Athletics: Current Judicial Interpretations of the Standard for Compliance, 74 B.U. L. Rev. 553, 561 (1994)

6. Grove City v. Bell, 465 U.S. 455 (1984)

7. S. Rep. No. 64, 100th Cong., 1st Sess. 4 (1987), reprinted in 1988 U.S.C.C.A.N. 3, 6

8. Cohen v. Brown University, 991 F.2d at 894

9. Franklin vs. Gwinnett County Public Schools, 501 U.S. 1204 (1991),

10. 34 C.F.R. ?? 106.37, 106.41 (1995).

11. 34 C.F.R. ? 106.41(c) (1995).

12. ? 106.41(c)(1)-(10) (1995).

13. 44 Fed. Reg. 71,413, 71,413 (1979).

14. 44 Fed. Reg. 71,413, 71,414 (1979).

15. 44 Fed. Reg. 71,413, 71,417 (1979).

16. Diana Heckman, Women and Athletics: A Twenty Year Retrospective on Title IX,

9 U. Miami Ent. & Sports L. Rev. 1, 47-59 (1992)

17. 44 Fed. Reg. 71,413, 71,418 (1979).

18. Communities for Equity v. Michigan High School Athletic Association, 80 F.Supp.2d

729, 141 Ed. Law Rep. 646 W.D.Mich

19. O’Connor v. Board of Education of School District Number 23, 545 F. Supp. 376 (N.D. Ill.) 1982

20. Israel v. Secondary Schools Activities ,388 S.E.2d 480, (W. VA. 1985)

21. http://bailiwick.lib.uiowa.edu/ge/present.html

22. http://daily.stanford.org/Daily96-97/5-14-97/SPORTS/SPObobby14.html

23. http://www.spintechmag.com/0001/rr0100.htm