Title IX & Gender Equity in Sport Simon Ch. 5 Title IX • In 1972, the US Congress passed Title IX of the Educational Amendments, which states that: – “No person in the US shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving federal financial aid.” Gender Equity In Sport • In 1979, the Dept. of Health, Education, and Welfare (HEW) stated that intercollegiate athletic programs must avoid discrimination in providing opportunities to participate, financial assistance, funding, equipment and facilities to M & F athletes. Gender Equity In Sport • How can we tell when men’s and women’s athletic programs are being treated equitably? • Simon (1991): “An athletic program is gender equitable if it makes no unjustified distinctions between genders”; We assume genders will be treated equally unless differential treatment is justified . OCR’s 3-Tiered Test for Compliance • In 1990, the Office of Civil Rights (OCR) published its manual for interpreting Title IX. The manual included a 3-tiered test for compliance in the area of “Accommodation of Athletic Abilities & Interests.” • For a program to be in compliance in this area, it must satisfy one tier of the test. OCR’s 3-Tiered Test for Compliance • Tier 1: Proportionality—Proportionality is achieved when the percentage of M & W in an athletic program is equal to the percentage of M & W in a college or university’s student body. • Tier 2: History of progress toward proportionality. • Tier 3: Accommodation of Interest of the Underrepresented Gender Proportionality • The OCR’s 3-tiered test for compliance puts forth proportionality as an ideal to be achieved. • Proportionality is thus a “safe harbor” for athletic programs; program’s achieving it attain the strongest level of compliance and are safe from litigation. • Some people do not understand the OCR’s 3-tierd test & believe proportionality is necessary for compliance; it is not. Proportionality • Problem: University Presidents and Athletic Directors using strategic reasoning have cut men’s sports to achieve proportionality and improve their program’s bottom line; they have blamed Title IX for the cuts. • The actions of such UPs and ADs are not in keeping with spirit of Title IX because they do not increase participation opportunities for the underrepresented gender, which at this time is women. Ethical Assessment • It is the ethical responsibility of UPs and ADs to show justice and beneficence toward athletes by establishing equitable athletic programs for both genders. • The role of proportionality in the OCRs test for compliance should be re-assessed. While a worthy ideal, social, demographic, and economic factors make it’s “safe harbor” status risky within 21st Century intercollegiate athletics. Ethics & Intercollegiate Athletics Simon Ch. 6 The Mission of a University • Provide liberal arts and professional education for a 21st Century world • Support scholarship and creativity of students and faculty for advancement of humankind • Serve the local and regional community in which the university is grounded Mission of an Ethical Athletic Dept. • Recruit, retain, and graduate quality student– athletes • Support academic & athletic endeavors of student-athletes • Achieve athletic excellence within limitations set through NCAA’s amateur model Are the Missions Contradictory? • The missions of universities and their athletic departments are not necessarily contradictory • The missions tend to conflict when – the educational mission of the university is subjugated to winning to the point it is ignored &/or not achieved – winning is perceived as being identical with intercollegiate athletic excellence, which cannot be achieved if the educational mission is not achieved. Winning & Commercialism • “Corruption Thesis” (Simon, 2010): “as sport becomes more and more commercialized, market forces tend to subvert the central purpose of an ethic of good competition and replace it by what sells, by what has entertainment but not necessarily sporting value” (P. 190). Winning & Commercialism • There is strong evidence that commercialism has corrupted intercollegiate athletics in ways that have increased winning’s importance. • At the D I level, education is subjugated to the university’s commercial interests as well as to winning. Winning & Commercialism • When the university attempts to hide the fact that it has “sold out” by prioritizing athletic and commercial success ahead of its educational mission, we get the hypocrisy we see in intercollegiate athletics today. Prescription • Re-prioritize: Place the educational mission of the university before winning and commercial success. • Intercollegiate athletics should serve the interests of the student-athletes first and foremost. If the educational mission is placed first, it should be able to do this Scholarships as Compensation • There is disagreement about whether college scholarships are fair compensation for the athletic efforts of NCAA D I student-athletes. • Under what conditions do scholarships amount to just compensation for these athletes? How Much Are Scholarships Worth? • DI athletic scholarships – primarily cover student-athlete’s tuition, room, and board. – Are often worth between $60,000 & $160,000 over 4-5 year period. – Can lead to a Bachelor’s Degree that significantly increases individual’s earning power over a lifetime. Scholarships as Compensation • Since scholarship values increase substantially only when bachelor’s degrees are earned, a scholarship will not be a strong form of compensation for a DI student-athlete unless s/he is in a strong position to earn a bachelor’s degree. Scholarships as Compensation • To be in a strong position to earn a bachelor’s degree, student-athletes – Must have the academic skills needed to succeed in college or be able to develop them with minimal remedial work. – Must have the time they need to learn content and skills, earn good grades, and meet program requirements necessary to earn the degree. Exploitation in College Athletics • If one or both of these two conditions is not met, one can argue that the student-athlete is being exploited to some degree. • Such exploitation exists when colleges: – Recruit academically unqualified student-athletes – Fail to provide appropriate academic support – Fail to provide adequate and appropriate academic work time 142 Chapter 5: Gender Equity in Sporta 143 Legislating Equality: Title IX and Its Critics Two court cases also explain the delay and much of the confusion about implementation. In Grove City v. Bell, decided in 1984, the Supreme Court ruled that Title IX applied only to programs directly receiving federal funds. On this interpretation, if College X's physics department received a federal grant, Title IX would apply only to the physics department and not to the col- lege's athletics program. Because few, if any, athletic programs at high schools or colleges and universities receive federal grants, the Grove City case ex- empted them from legislative review under Title IX. This led Congress to pass the Civil Rights Restoration Act, which responded to the decision in Grove Before turning to that, it will be useful to consider the general under- standing of equity that seems to underlie Title IX. It might be natural to assume that Title IX requires identical treatment for men's and women's inter- collegiate sports in the sense, say, of requiring identical expenditures on each. rather than identical treatment. Consider an example from another area. However, Title IX is better understood as requiring equivalent treatment that half the students in a particular school want to develop their Suppose musical abilities and half want to learn computer science. The school buys musical instruments adequate for instruction and provides for sufficient com- puters and faculty to allow the formation of a computer science program. But because computers cost more than musical instruments, the school spends City, in 1988. This act made Title IX apply to an entire institution that received either direct or indirect federal aid. In the second case, Franklin v. Gwinnett County Public Schools, decided in 1992, a unanimous Supreme Court ruled that plaintiffs filing Title IX lawsuits were entitled to punitive damages if it had been found that the institution being sued intentionally took steps to avoid compliance with Title IX.21 In effect, this decision put real teeth into the legislation-namely, the threat of having to pay damages for certain sorts of failures to comply. Thus, disagreements about the scope and enforcement of Title IX help to explain delays in implementation. Even assuming goodwill on the part of educational institutions, it was unclear how to apply the legislation and what the remedy for failure to comply might be in different kinds of cases. In 1990 the Office of Civil Rights (OCR) issued a manual for interpreting Title IX that, along with clarifications made in 1996, has become authorita- several times the money it spends on the musicians on the students in the computer program. Even so, the opportunities are equal for both groups in the sense of being equivalent. All the students have an equal chance to pur- sue their interests. Another way of putting it, following the legal philosopher Ronald Dworkin, is to say that both groups of students have been treated with equal respect and concern.22 This example suggests that “equal expenditures” and “equal opportuni- ties” are two distinct notions. The examples have clear analogies in the world of sports. For example, suppose equipment for men's teams in a particular sport is more expensive than equipment for the parallel women's team or that a more experienced coach of a women's team gets paid more than a rookie coach of a men's team at the same university. Such differences are allowable. Thus, the set of principles underlying Title IX seems to require equal respect and tive. The OCR interpretation included what has been called the three-part test" that has become the center of controversy. Let us consider what Title IX, as it has evolved and as it has been interpreted by the Office of Civil Rights, actually requires. What Does Title IX Require? Go The OCR identifies three major areas of compliance with Title IX: athletic scholarships, accommodation of athletic interests and abilities, and other ath- letic benefits and awards. The first applies only to those institutions in Divi- sions I and II of the National Collegiate Athletic Association (NCAA) that award athletic scholarships. It requires roughly that male and female athletes receive proportional shares of available scholarships. The third requires that educational institutions treat male and female athletes equitably in the distri- bution of fields for practice, equipment, access to trainers, expense allowances, and the like. We will be concerned in our discussion primarily with the sec- concern for each gender, understood as provision of equivalent opportunities rather than identical treatment. Keeping the distinction between identical and equivalent opportunities in mind, let us turn to the OCR's three-part test for compliance. In particular, the OCR proposes that institutions can comply with Title IX in accommo- dating athletic abilities and interests by meeting any one requirement of the following three: 1. By providing opportunities for participation in the intercollegiate athletics program for students of each sex that are substantially proportionate to their respective enrollments in the student body as a whole. 2. If not, the institution can comply by showing a history and continuing practice of expansion of the intercollegiate athletics program responsive to developing interests and abilities of members of the underrepresented sex. 3. If not, the institution still can comply by showing that the interests and abil- ities of the underrepresented sex are fully and effectively accommodated" by the existing program. ond area, accommodation of athletic abilities and interests, because it clearly is most fundamental. ano ad looside Legislating Equality: Title IX and Its Critics 141 Legislating Equality: Title IX and Its Critics What are the implications of the preceding discussion for policy? Much discus- sion focuses on Title IX of the Educational Amendments of 1972, the federal leg- islation that applies to gender equity in athletics in educational programs. Let us tion of Title IX advanced by the Office of Civil Rights in 1996 to see why this leg. the center of a controversy over how best to achieve gender equity in athletics. islation, which has done so much to promote greater equality in athletics, is also lo 2 The Development of Title IX 2 le of As we already have noted, women's participation in competitive athletics was and the passage of Title IX itself. In the early 1970s more than 4 million boys significantly limited before the civil rights movement, the rise of feminism, participated in high school athletics, compared to approximately 300,000 girls. Gross disparities in participation and expenditures on males and females also were the rule in intercollegiate athletics. James Michener, writing about the period before promulgation of Title IX, reported that one day I saw the budget body divided fifty-fifty between men and women. The athletic department had $3,900,000 to spend, and of this, women received exactly $31,000, a little less as alle mily Of... a state institution (a university), supported by tax funds, with a student the this free sex. nces, ghts, than eight-tenths of one percent. On the face of it , this was outrageous.”20 The passage of Title IX, along with other concurrent social trends, including the emphasis of the early feminist movement on equality for women, resulted in almost immediate jumps in participation by females in athletics and increases in expenditures by educational institutions on athletic programs for women and girls. By 1979, 2 million girls were participating in high school athletics, compared to about 300,000 before 1972. However, Title IX was never uncon- troversial . In testimony before Congress even in the 1970s critics charged that it would lead to quotas for female athletes and argued that, at the very least, revenue-producing sports such as football should be exempted from its re- quirements . Proponents of the legislation responded that the new legislation was not designed as a quota system but as a way to level the playing field by enjoyed by men. These same controversies, as we shall see , continue today. iman wance T men antage equal" ligma providing women with opportunities in intercollegiate athletics equal to those , and X antaged oach to OSHO Perhaps part of the reason for the continuing controversy can be found in the history of Title IX. Although passed by Congress in 1972, it was only in the late 1990s that a consistent and relatively clear interpretation of the legislation emerged and began to be applied by the courts, although this interpretation bas been the subject of bitter controversy. 142 Chapter 5: Gender Equity in Sporta 143 Legislating Equality: Title IX and Its Critics Two court cases also explain the delay and much of the confusion about implementation. In Grove City v. Bell, decided in 1984, the Supreme Court ruled that Title IX applied only to programs directly receiving federal funds. On this interpretation, if College X's physics department received a federal grant, Title IX would apply only to the physics department and not to the col- lege's athletics program. Because few, if any, athletic programs at high schools or colleges and universities receive federal grants, the Grove City case ex- empted them from legislative review under Title IX. This led Congress to pass the Civil Rights Restoration Act, which responded to the decision in Grove Before turning to that, it will be useful to consider the general under- standing of equity that seems to underlie Title IX. It might be natural to assume that Title IX requires identical treatment for men's and women's inter- collegiate sports in the sense, say, of requiring identical expenditures on each. rather than identical treatment. Consider an example from another area. However, Title IX is better understood as requiring equivalent treatment that half the students in a particular school want to develop their Suppose musical abilities and half want to learn computer science. The school buys musical instruments adequate for instruction and provides for sufficient com- puters and faculty to allow the formation of a computer science program. But because computers cost more than musical instruments, the school spends City, in 1988. This act made Title IX apply to an entire institution that received either direct or indirect federal aid. In the second case, Franklin v. Gwinnett County Public Schools, decided in 1992, a unanimous Supreme Court ruled that plaintiffs filing Title IX lawsuits were entitled to punitive damages if it had been found that the institution being sued intentionally took steps to avoid compliance with Title IX.21 In effect, this decision put real teeth into the legislation-namely, the threat of having to pay damages for certain sorts of failures to comply. Thus, disagreements about the scope and enforcement of Title IX help to explain delays in implementation. Even assuming goodwill on the part of educational institutions, it was unclear how to apply the legislation and what the remedy for failure to comply might be in different kinds of cases. In 1990 the Office of Civil Rights (OCR) issued a manual for interpreting Title IX that, along with clarifications made in 1996, has become authorita- several times the money it spends on the musicians on the students in the computer program. Even so, the opportunities are equal for both groups in the sense of being equivalent. All the students have an equal chance to pur- sue their interests. Another way of putting it, following the legal philosopher Ronald Dworkin, is to say that both groups of students have been treated with equal respect and concern.22 This example suggests that “equal expenditures” and “equal opportuni- ties” are two distinct notions. The examples have clear analogies in the world of sports. For example, suppose equipment for men's teams in a particular sport is more expensive than equipment for the parallel women's team or that a more experienced coach of a women's team gets paid more than a rookie coach of a men's team at the same university. Such differences are allowable. Thus, the set of principles underlying Title IX seems to require equal respect and tive. The OCR interpretation included what has been called the three-part test" that has become the center of controversy. Let us consider what Title IX, as it has evolved and as it has been interpreted by the Office of Civil Rights, actually requires. What Does Title IX Require? Go The OCR identifies three major areas of compliance with Title IX: athletic scholarships, accommodation of athletic interests and abilities, and other ath- letic benefits and awards. The first applies only to those institutions in Divi- sions I and II of the National Collegiate Athletic Association (NCAA) that award athletic scholarships. It requires roughly that male and female athletes receive proportional shares of available scholarships. The third requires that educational institutions treat male and female athletes equitably in the distri- bution of fields for practice, equipment, access to trainers, expense allowances, and the like. We will be concerned in our discussion primarily with the sec- concern for each gender, understood as provision of equivalent opportunities rather than identical treatment. Keeping the distinction between identical and equivalent opportunities in mind, let us turn to the OCR's three-part test for compliance. In particular, the OCR proposes that institutions can comply with Title IX in accommo- dating athletic abilities and interests by meeting any one requirement of the following three: 1. By providing opportunities for participation in the intercollegiate athletics program for students of each sex that are substantially proportionate to their respective enrollments in the student body as a whole. 2. If not, the institution can comply by showing a history and continuing practice of expansion of the intercollegiate athletics program responsive to developing interests and abilities of members of the underrepresented sex. 3. If not, the institution still can comply by showing that the interests and abil- ities of the underrepresented sex are fully and effectively accommodated" by the existing program. ond area, accommodation of athletic abilities and interests, because it clearly is most fundamental. ano ad looside 145 Chapter 5: Gender Equity in Sport Legislating Equality: Title IX and Its Critics likely to arise. isves of gender equity that are 144 An intercollegiate athletic program that fails one prong of the three-part test Legal compliance is established by satisfying any one of the three tests. might still be in compliance with Title IX by satisfying another. The first is regarded as a "safe harbor" in the sense that a finding of proportionality will at the tanality and the effective accommodation of interests. Because these areas are compliance. However, failure to show proportionality (it is doubtful whether very least establish a strong and perhaps overwhelming presumption of fundamental, exploring them may help shed some light on other important many institutions of higher education in the country, especially those with football programs with their huge rosters of players, now satisfy this require ment as strictly construed) is not sufficient to establish noncompliance if the tutions athletic program in proportion to their representation in the student The idea that men and women should be represented in an educational insti- significant benefits and opportunities and there is no reason to favor one gen- body initially sounds plausible. After all, if participation in athletics provides der in the distribution of these benefits and opportunities, then one would ex- pect them to be made available to both genders equally. So if 60 percent of the student body is male and 40 percent female, in the absence of discrimination one would expect to find that about 60 percent of the institution's athletes were treatment. Proportionality other criteria are satisfied. The three-part OCR test has some important similarities to what might be called a presumptive approach to gender equity. It presumes that both gen- ders will be treated equally but acknowledges the possibility of allowable rea sons for inequality. Representation of gender in proportion to its share of the overall student body will normally be taken as compelling evidence of equal male and about 40 percent female. But there are problems with this initial expectation. For one thing, there is about a three-to-two ratio of male to female participants in high school (in- terscholastic) athletics.” Given that there remains a disproportion in the rep- resentation of each gender in sports at the precollege level, is it reasonable to expect the proportion of women participating at the college level, which is sig- nificantly more demanding than at the high school level, to suddenly jump? If not, say the critics of the proportionality requirement, then it is unreasonable to place so much emphasis on proportional representation in the first place. Where will the additional female athletes needed to achieve proportionality come from? If proportionality cannot be satisfied, compliance with Title IX can be demonstrated by showing compliance with one of the other two prongs of the test. In applying the third prong by assessing whether the interests of the un- derrepresented gender have been “fully and effectively accommodated" the assumption is that each gender will be treated equally in the absence of justi- fying reasons for inequality. But justifying reasons are possible. For example, sometimes where there is interest in developing a new women's sport at an institution that does not satisfy the first two prongs, it is reasonable for the institution to expect that interest to continue for a sustained period of time and for the prospective participants to demonstrate sufficient ability before taking steps to support the new sports team. What counts as a justifiable reason for inequality often will be controver- sial. Does the past success of the men's basketball team at a Division I institu- tion justify them playing a more nationally prominent schedule than the less successful women's team? What if the athletic director promises to upgrade the women's schedule as soon as the team develops sufficiently to compete success- fully at that level? Should a 98-pound female gymnast receive the same daily This difficulty leads critics to raise a major objection to the proportion- ality requirement-namely, that regardless of the intentions of its proponents, proportionality functions to decrease opportunities for male athletes rather than increasing them for female athletes. That is because there are two ways to remedy the perceived underrepresentation of women. The first is to raise the proportion of women participating; the second is to reduce the proportion of men participating. In other words, by cutting men's sports, the institution could achieve proportionality and a “safe harbor" from further legal action without adding an additional opportunity for even one female athlete to participate. less-visible men's sport teams seem to have been cut at various institutions, In fact, critics of the proportionality requirement charge that numerous quite possibly in part to achieve a more respectable-looking ratio of female tennis, gymnastics, swimming, and golf teams.24 Accordingly, the requirement to male athletes, including well over 150 wrestling programs and many men's of proportionality may have the unintended consequence in American colleges and universities of decreasing the number of slots on athletic teams, possibly meal allowance as a 275-pound male lineman on the football team when the teams are on the road? Is it an inequity if the lineman is given a greater allow- ance because he needs more food? Rather than pursuing the numerous questions that could be raised about what counts as justifiable reasons for inequality , which cannot all be explored here, we shall focus on the more useful task of examining fundamental issues raised by the OCR three-pronged test, particularly those concerning propor- 146 Chapter 5: Gender Equity in Sport without significantly increasing opportunities to participate for women but mainly through decreasing them for men. There are three important responses to this kind of criticism. The first ment. Institutions can comply by satisfying one of the other two prongs of is that Title IX does not require satisfaction of the proportionality require. the OCR three-part test. The second is that Title IX does not require insti- tutions to eliminate less visible men's programs but does allow them instead to shift resources from high-visibility and arguably bloated men's sports, par- ticularly college football, to women's sports programs. The third is that it is not necessarily unjust to cut men's programs if men had previously enjoyed a disproportionate share of the resources. Nancy Hogshead-Makar of the Wom- en's Sports Foundation argues that if a second child is born into a previously single-child family, the parents may need to reduce time spent with the first child to spend time with the new arrival. In such circumstances, no one claims an injustice has taken place; rather, equal concern is shown for each child Similarly, Hogshead-Makar argues that perhaps reducing the men's program is necessary to show equal respect for “the new kid on the block," namely the women's sports program.25 Critics of proportionality might reply that, although these responses may blunt some of the force of the objection that proportionality reduces opportunities for men without raising them for women, each response also faces difficulties. The first response is that colleges and universities need not achieve proportionality but can satisfy one of the other two requirements OCR laid down. This approach surely is acceptable and is perhaps the fairest method of compliance, but it also raises some difficult questions. In par- ticular, it is important to remember that questions of distributive justice in intercollegiate athletics arise at least at two levels: distribution of resources within the athletic program and distribution within the university generally . Thus, should colleges and universities be required to increase expenditure on athletics at a time when many academic needs are unmet because of lack Legislating Equality: Title IX and Its Critics 147 This reply, however, leads to another difficulty. We agree that it will some- high-budget men's sports to women's programs, particularly at the large Divi- times be possible to shift some resources from football and perhaps from other sion I football powers. This may not be the case, however, for smaller colleges; indeed, the implications would be quite different at nonscholarship schools or those competing at the Division III level. In Division III schools transferring support from football to other sports might result in smaller rosters, which would mean that those young men at the bottom of the team's ability level could lose the opportunity to play. Because such athletes are playing primarily for love of the game, it is, at best, unfortunate that they would bear the brunt of compliance. Be that as it may, major college football teams could continue to play at an elite (Division I) level after, say, a 5 to 10 percent cut in the ath- letic scholarships they offer, perhaps with consequent increased participation by walk-on football players who compete for love of the game. Indeed, under present rules elite Division I institutions often have a greater number of schol- arship players on their football roster than the number of players on the roster of a typical NFL team, so it is hard to believe some cuts in roster size would significantly reduce the quality of play in intercollegiate football. Nevertheless, the slogan “Cut big football budgets” is not necessarily an across-the-board solution to the problems proportionality raises, particularly at the schools that play football but do not offer athletic scholarships and do not have bloated budgets . At these schools cuts in rosters would affect walk-on players without necessarily adding opportunities for females. In any case, we agree that compliance does not require meeting the pro- portionality requirement and that many, but not all, institutions might be able to comply by adding women's teams or diverting resources from high-budget men's teams to women's teams. We also find Hogshead-Makar's analogy of di- verting resources within the family to be an important contribution to the de- bate. We point out, however, that in her example the second child gains from less resources devoted to the first, but the women's athletic program does not necessarily gain from simply eliminating men's teams to achieve proportionality. What about the claim critics of proportionality sometimes make, that women simply are less interested in participating in athletics than men are? If of funding? Is it more important to add a women's team than to support faculty, provide financial aid to needy students, or make computer facilities more accessible to everyone in the institution? Expansion, then, may be an ideal solution in some contexts but may not be affordable or educationally warranted in others. Proponents of the proportionality requirement, arguably with good rea- son, are unlikely to regard such a retort as fair or reasonable. After all, they can point out, men's athletic programs often are extremely costly. Why not reduce funds allocated to them in order to add women's teams rather than blaming so, it would be unreasonable to expect to find the proportion of women ath- letes at a given institution to be proportional to the representation of women in the student body as a whole. In other words, the argument that each gen- der should be proportionately represented in the university's intercollegiate athletic program presupposes that the members of each gender have an equal interest in participating. It is that very presupposition that critics of propor- tionality call into question. nto for taking funds from academics and financial aid? Da 149 Legislating Equality: Title IX and Its Critics programs 148 Chapter 5: Gender Equity in Sport be accepted prematurely. As proponents of proportionality retort, females in Although such a criticism may prove to have some merit, it should not America have traditionally been discouraged from participating in athletics and are only now beginning to overcome the socialization that has inhibited participation. Therefore, rates of participation are not adequate indicators of true interest. If colleges and universities provide additional women's sports, the participants will eventually come. We suggest caution in interpreting what may be the effects of adverse socialization of women about sports that may have discouraged many of them from participating as evidence of lack of interest under conditions of fair opportunity; indeed, the enormous growth of female participation in athletics after the passage of Title IX indicates the interest is there if opportunities to play are available and participation is encouraged . At the very least, there is an obligation to go beyond crude measures, such as how many women try out for teams, before we conclude that women have less interest in athletics than do men. For example, would more women try out if they were encouraged to do so, if a different range of sports was offered, or if the university recruited in a wider range of geographic areas? What should we conclude about the debate over proportionality? First, both sides have points of some intellectual merit. The proponents of propor- tionality argue with plausibility that compliance with Title IX does not require satisfying the proportionality prong of the three-part test and that it is unfair to assume at this time that women have less interest in participating in sport than do men. Critics of proportionality have a point when they argue that however well intentioned the proponents may be, proportionality in practice is likely to result in further cuts in men's sports, possibly without the compensatory addition of sports for women. In view of these conflicting arguments, it is natural to wonder whether compromise is possible. Although we doubt whether any compromise will be fully satisfactory, the following suggestions may help carry the debate between proponents and critics of proportionality closer to a common ground. First, more emphasis should be placed on fully accommodating the in- terests of the underrepresented gender , usually women, as required by one of the other prongs of the three-part test, and less on proportionality. As sug- adopt common guidelines so no one institution would be placed at a compet- be trimmed, thereby freeing up other resources for expanding the women's itive disadvantage.) Roster size of large men's teams, especially football, might Second, expanding opportunities for women need not always mean the males to females in interscholastic varsity sports in the United States, the addi- addition of varsity sports. In fact, in view of the nationwide disproportion of tion of extensive developmental programs for women, perhaps starting below without necessarily leading to the addition of full-fledged varsities. Perhaps the high school level, might promote women's lifetime involvement in athletics what would be more appropriate than the addition of varsity sports in some circumstances would be the addition of more lower-level recreational grams designed to involve large numbers of females in sports. The addition of individuals who are already strongly interested in participating. Varsity sports a varsity team or two hardly fulfills such a role and surely is better justified for pro- demand commitment and competitive intensity and seem most appropriate for those who are already interested in athletic competition. This does not mean institutions should be able to satisfy Title IX "on the cheap," say, by adding disorganized and underfunded intramural leagues. The suggestion is that genuine developmental opportunities, including expert coaching and opportunities to develop skills through training, be made avail- able to significant numbers of women and girls. Although significant expense would be required, it should be less than the continual addition of varsity sports and may eventually increase women's overall interest in athletics. Third, compliance with the proportionality requirement should be re- garded as a last resort when it is achieved only by cutting men's sports. In- stitutions that attempt to comply by such means should have the burden of proof on them to show that less drastic means of compliance could not rea- sonably have been expected to work. Could travel schedules for men's teams have been reduced, recruiting budgets cut, or even slots trimmed from some gested above, funds sometimes, and perhaps quite often at the Division I level, could be diverted from expensive men's programs without necessarily cutting sports or even slots on team rosters. For example, many teams could schedule more games locally or regionally and cut back on national travel. Similarly, recruiting restrictions could be tightened by cutting back the often large bud- gets devoted to attracting student athletes to the institution, most often for filomen's sports. (This might require all institutions in a conference to rosters rather than actually eliminating a whole sport? Simply cutting men's sports does not result in increasing opportunities for women and should be an acceptable form of compliance only when it is a last resort to satisfy the law. the case for cutting men's programs may be stronger , however, as suggested by Hogshead-Makar's analogy with the family, if resources from the programs that are eliminated are diverted to women's teams.) Finally , in the competition for scarce resources it should not be forgotten that athletics help participants in meeting challenges, in developing dedica- tion and commitment, in finding self-esteem, and in working for a com- mon goal with people from different cultural, religious, and socioeconomic
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