The Women's Sports Foundation strongly protests the Title IX Commission's draft proposals to alter Title IX and urges the public to write to the Commission to register their objections.
Published: January 8, 2002
Executive Summary
The Commission on Opportunity in Athletics, appointed by the U.S. Department of Education to examine Title IX as it applies to athletic programs, is poised to recommend the removal of the law's long-standing equality standards. The levels they suggest would allow institutions to treat female athletes like second-class citizens, receiving from 2% to 25% fewer opportunities to participate and scholarship dollars than male athletes.
According to statistical analyses conducted by the Women's Sports Foundation for the NCWGE, all of the proposals currently being considered by the Title IX Commission will negatively alter the landscape of high school and collegiate athletics for women and men by permitting institutions to
- offer from 31,000 to 78,000 fewer female participation opportunities at the college level,
- offer from 374,000 to 931,000 million fewer participation opportunities for girls in high school,and
- award $75 to $188 million less in college athletic scholarships to women than is currently required under the law.
For the next generation of girls, such changes represent the possibility of losing:
- from $1.4 to $3.8 billion in athletic scholarships – direct access to college education
- from 7.5 to 18.6 million high school participation opportunities
- from 616,000 to 1.6 million college participation opportunities
The Commission's known additional proposals include requiring girls and women to prove their interest in sports in order to have an equal right to participate and repealing the Equity in Athletics Disclosure Act, the only existing mandate for public disclosure of participation and budget statistics related to equal opportunity in sports.
The Department of Education created the Secretary's Commission on Opportunity in Athletics to examine federal standards for measuring equal opportunity to participate in athletics under Title IX. The Commission will issue a report to Education Secretary Rod Paige by February 28, 2003, on whether Title IX standards should be revised. The attached comments address draft positions being considered by the Commission. Note: The last meeting of the Commission, where final recommendations will be decided will take place in Washington, DC on January 29-30, 2003.
Members of the public are urged to write to members of the Commission, their Congressional representatives and the President to object to this attempt to dismantle an important civil rights law. (Note: The Foundation's Web site provides a pre-addressed e-mail form for this purpose - http://capwiz.com/wsf/home/)
FOUNDATION POSITION
- The current Title IX athletics policies should remain unchanged and be more strongly enforced because schools are still far from compliance with the law.
- Athletic directors and other college officials have been misinformed about the use of the provisions of Title IX, which permit departure from the participation proportionality standard for non-gender-based reasons. The Department of Education should conduct education programs about the law.
- National sport governance organizations (NCAA, NAIA, etc.) must explore the possibility of an anti-trust exemption and other measures that would permit the more effective control of athletic program costs. The “arms race” and the cost of athletics are the primary reasons for the discontinuation of men's sports teams and failure to add women's teams to meet Title IX obligations.
Women's Sports Foundation Leadership Quotes
NOTE: Julie Foudy, former President, and Donna de Varona, Chair of the Foundation's Board of Stewards, will not make formal statements until their service as members of the Commission is complete.
“This is not the message we want to send to our daughters or our sons. We want boys and girls to know that they are equally valued, will receive the same chances to play and be treated equally in sports and in life. If we don't send this message in schools supported by our tax dollars, we have failed our children.”
-- Billie Jean King, Founder and Chair of the Board of Trustees, Women's Sports Foundation
“All parents, mothers and fathers, need to realize that Title IX is in real trouble, and if we don't start speaking up to the members of the Title IX Commission and to our Congressmen, our daughters and sons will lose. We encourage concerned citizens to write or call their representatives now. Without the support of the public, Title IX will not survive and millions of girls and women will lose the benefits of sport: confidence, physical wellness, the opportunity for a free education and the skills to succeed in our highly competitive society.”
-- Dawn Riley, President, Women's Sports Foundation
“This is all about ‘sharing the sandbox'. If resources are limited and budgets stretched, that is no justification to discard civil rights laws. The proposals currently being considered by the Commission are equivalent to proposals discarded 30 years ago to eliminate football and men's basketball from Title IX compliance consideration – these proposals will have the same impact. They are nothing more than thinly veiled attempts to legislate continued advantage to men's sports. Further, they are being made by a Commission consisting of 11 of 15 representatives of Division I-A institutions or conferences -- institutions who would benefit from not having to put more resources into women's sports. The composition of the Commission and the process by which the Commission has undertaken its study of Title IX lacks integrity.”
-- Donna Lopiano, Ph.D., Executive Director, Women's Sports Foundation
FACTS AND COMMENTS
Schools are still not in compliance with Title IX. Females receive 1.1 million less high school and 58,000 less college participation opportunities and $133 million less in athletic scholarships. Spending for men's sports still vastly outstrips spending for women's teams, with women receiving less than one-third of the dollars spent by schools to recruit new athletes and only slightly more than one-third of athletic operating budgets. In fact, schools spend $2 on men's sports for every $1 they spend on women's sports.
Men's opportunities have increased, not decreased. An authoritative study by the U.S. General Accounting Office shows that the number of male athletes has increased by about 5% since 1981-82, with men's baseball and soccer teams, among others, registering big gains and offsetting the discontinuation of male teams in other sports. Male athletes receive 58% of all sports participation opportunities – female athletes 42%.
Where men's opportunities have been cut, Title IX is not the reason. . Where there have been reductions in certain men's teams, such as wrestling, those reductions have been made for reasons unrelated to Title IX – including declining interest in specific sports, liability considerations, and the poor performance of specific teams. Notably, it is bloated expenses for football and men's basketball, and the athletics arms race in general, that are the biggest culprits for losses of men's minor sports opportunities. Men and women need not be pitted against each other; sensible budgeting can enhance opportunities for all.
Women are not less interested in sports than men. Such stereotyping is unlawful, contrary to fundamental principles of civil rights law and contradicted by the facts, which show that women's participation in sports has grown astronomically as the doors have been opened to them since Title IX was passed. Their lower rate of participation in high school sports reflects the persistence of discriminatory barriers – schools not sponsoring as many participation opportunities for females as for males -- not a lack of interest. Further, to suggest that the 6 million boys and girls currently playing high school sports do not have the same interest in obtaining the $1 billion in athletic scholarship dollars and filling the 400,000 participation opportunities available is preposterous.
The composition of the Title IX Commission and the process of their consideration of the issues were biased against Title IX.
11 of 15 Commissioners are from Division I-A schools or athletic conferences consisting of Division I-A, the largest schools in the NCAA, the ones with the biggest football and men's basketball programs and the ones with the greatest interest in lessening the amount of regulation to which they are subject. The Commission has no representatives of Division II and Division III colleges, or of junior colleges or high school athletics programs, even though the concerns of those schools can be significantly different from those of Division I schools.
The Department of Education has exhibited extraordinary bias against Title IX in the selection of panelists invited to testify before the Commission. Of the 52 invited panelists, opponents of Title IX outnumbered supporters by more than two to one: 15 in favor, 31 against and 6 neutral.
Repeated panelist opportunities went to organizations and individuals with an interest in weakening Title IX
- Many panelists were affiliated with the highest numbers of men's discontinued teams: wrestling (6), swimming (2), gymnastics, (2).
- No panelists represented organizations with a large number of discontinued women's sports or new women's Olympic sports that benefited from Title IX.
- Four invited panelists were football coaches or representatives of football organizations seeking to protect their advantaged positions.
- At least five of the panelists represented schools sued for compliance problems, with no panelists called who represented plaintiffs against institutions in Title IX court cases.
Repeated requests by Commissioners for expert panelists were ignored by Department of Education staff, who consistently obstructed these requests.
- The Commissioners called for a full explanation of the Title IX athletics policies, but received testimony only from a very junior lawyer who could not explain the 1996 policy clarification.
- Department of Education staff ignored repeated requests to hear from Marney Shaul of the General Accounting Office, who oversaw the most accurate research on participation and discontinued teams. The GAO is a non-partisan government agency that produced an authoritative study of changes in participation that showed that both men's and women's opportunities have increased overall in the last 20 years.
- Repeated calls to address the “arms race” and the most accurate financial data from researcher Daniel Fulks were not granted.
- Repeated calls for experts on the validity of interest surveys were ignored.
As a result, the Commissioners were left with unanswered questions about all the data brought before the Commission and even about the law itself.
The procedures established by the Department of Education and the conduct of Department of Education staff members in conducting the hearings were obstructionist.
For instance, the initial question posed to the Commission was misleading with regard to the purpose of Title IX. Rather than asking the Commission to evaluate whether Title IX policies appropriately implement Title IX's requirements for equal participation opportunities – a question that would necessitate an examination of the needs of the historically disadvantaged population of female athletes – the first question instead focused on the needs of a small disadvantaged group within the majority male athlete population.
The six-month timetable for Commission study is unrealistic given the volume of testimony received and the complexity of the issues. At the Commission's December 2002 meeting in Philadelphia, it was clear that neither Commission members nor Department of Education staff understood the existing law and extensive policy documents issued over 25 years by the Department.
- For example, when one Commissioner requested that the staff explain the 1996 clarification letter, she was told that there was not time. Without any review of the document, therefore, the Commissioners went on to recommend changes to a policy that they did not fully understand.
- The Commission convened to present its initial recommendations only six working days after the final Town Hall meeting in San Diego. Last-minute instructions for the Philadelphia meeting were provided that several commission members did not get a chance to read.
The Commission is considering six different proposals that attack the proportionality standard – the basic definition of equality under Title IX – all of which drastically reduce opportunities for female athletes and all of which permit schools to be in compliance with Title IX while providing 2% to 25% more opportunities and scholarship dollars to male athletes. Impact analysis numbers assume (1) no loss of scholarships or participation opportunities for male athletes and (2) 53% female athletic participation required under Title IX current Prong One, proportionality (Note: average % of female students in higher education ranges from 50-55% depending on size of school)
Proposal 1. Permit institutions to vary up to 3.5% below the proportionality.
- Female High School Athletic Participation Loss:
Annually,-495,628
Over a Generation, 9.9 million
- Female College Athletic Participation Loss:
Annually,-30,800
Over a Generation, 615,994
- Female College Athletic Scholarship Loss:
Annually,-$103,470,090
Over a Generation,$2.069 billion
Proposal 2. Permit institutions to vary up to 5.0% below the proportionality.
- Female High School Athletic Participation Loss:
Annually,-689,041
Over a Generation,13.8 million
- Female College Athletic Participation Loss:
Annually,-42,730
Over a Generation,854,607
- Female College Athletic Scholarship Loss:
Annually,-$103,470,090
Over a Generation,$2.069 billion
Proposal 3. Establish a 50% male/50% female standard instead of proportionality and permit institutions to vary up to 3.5% below 50-50.
- Female High School Athletic Participation Loss:
Annually,-374,375
Over a Generation,7.5 million
- Female College Athletic Participation Loss:
Annually,- 53,992
Over a Generation,1.1 million
- Female College Athletic Scholarship Loss:
Annually,-$130,739,777
Over a Generation,$2.615 billion
Proposal 4. Permit institutions to vary up to 7.0%% below the proportionality.
- Female High School Athletic Participation Loss:
Annually,-931,336
Over a Generation,18.6 million
- Female College Athletic Participation Loss:
Annually,- 57,607
Over a Generation,1.2 million
- Female College Athletic Scholarship Loss:
Annually,-$139,493,010
Over a Generation,$2.790 billion
Proposal 5. Establish the participation standard at 3% above the current high school participation level (currently 42%).
- Female High School Athletic Participation Loss:
Annually,-574,259
Over a Generation, 11.5 million
- Female College Athletic Participation Loss:
Annually,-64,639
Over a Generation,1.3 million
- Female College Athletic Scholarship Loss:
Annually,-$156,522,027
Over a Generation,$3.130 billion
Proposal 6. a 50% male/50% female standard instead of proportionality and permit institutions to vary up to 7% below 50-50.
- Female High School Athletic Participation Loss:
Annually,-824,407
Over a Generation,16.5 million
- Female College Athletic Participation Loss:
Annually,-77,964
Over a Generation,1.6 million
- Female College Athletic Scholarship Loss:
Annually,-$188,787,533
Over a Generation,$3.776 billion
The Commission is also considering proposals that would:
- have female athletes prove their interest in sports in order to obtain the right to participate and be treated equally.
An interest survey would be administered and the percentage of opportunities that must be offered for women under Prong One of Title IX would be tied to the results of that survey, in lieu of proportionality as the basic standard.
count ghost female participants. Commissioners have proposed that the current proportionality standard be maintained but that slots rather than actual participants would be counted (i.e., if a school has a tennis team, count male participants as 10 and female participants as 10 even if 14 males and 8 females participate on the team).
repeal the Equity in Athletics Disclosure Act, the only existing mandate for public disclosure of participation and budget statistics related to equal opportunity in sports.
The financial problem with college sports today is not Title IX or its implementation guidelines; the problem is waste.
- “The 2002 NCAA revenue and expenses study found that, of the 114 reporting DI-A schools, the average athletic department deficit was $600,000 in 2001. If one adds to this the average of $1,425,000 in student fees going to athletics and the $4,625,000 in donations going to athletics, a standalone athletic department operating deficit averages $6,650,000. Even this number substantially understates the average subsidy going to athletics for Division I-A schools.”
- “The problem is that the one-sided incentives in DI-A lead most schools to seek elusive financial gain. But like the NCAA itself, athletic departments are run by athletic directors, coaches and conference commissioners who do not have to answer to stockholders and do not face the financial discipline of the marketplace. The consequence is endemic waste. The solution is paring down unnecessary expenses, allowing more men's teams to be maintained or restored at the same time that gender equity is pursued.”
-- Andrew Zimbalist
Robert A. Wood Professor of Economics, Smith College
Financial solutions must be explored to reduce the budget pressures that lead to the discontinuation of some men's and women's sports teams and the current failure to meet Title IX compliance obligations regarding increasing participation opportunities for females.
- Reduction of Scholarship Expenses. For example, DI-A football does not need 85 scholarships, 60 would do fine. NFL teams have 45 roster plus seven reserve players. The average DIA team has 32 walk-ons, plus 85 scholarship players. If football scholarships were cut to 60, the average college would save approximately $750,000 annually, enough to finance more than two wrestling teams, for instance, whose average cost is $330,000 per team, or add opportunities for women to play.
- Control of Coaches' Salaries. The NCAA should seek a congressional antitrust exemption with regard to coaches' salaries. Currently there are more than 75 Division I men's basketball and football coaches who make $1 million or more. These salaries are far above what is paid to college presidents and top medical school professors and are not defensible in not-for-profit tax-exempt organizations.
- Other Savings. The NCAA should legislate excessive operating expenditure restrictions for all member institutions. Examples of such restrictions may include:
- Limit size of institution travel party to bowl games,
- Eliminating the practice of putting the men's basketball and football teams up at
local hotels before home games,
- Limit the size of coaching staffs (numbers of coaches) based on standard
athlete/coach teaching ratios, and
- Reduce the length of the playing seasons and number of contests permitted.
There is no justification for excluding football from Title IX or any other sport from inclusion under Title IX.
- “Title IX does not state that there shall be no gender discrimination where team revenue generation is equal. It simply states that there shall be no gender discrimination, period.”
- “A sport's presumed profitability is plainly not a relevant criterion. As stated in Article 1 of the NCAA Constitution, college sports are based on the principle of amateurism and the subordination of athletic to academic goals. As such, Division I and II schools benefit mightily from not directly paying their athletes, from tax exemptions on facility bonds and from special tax treatment of UBIT income.”
- “Further, in 1984 the Supreme Court determined that the NCAA may legitimately restrain trade in many areas because, due to its amateur branding, college sports increase output and enhance consumer welfare. If college sports were to professionalize and separate out their football programs using non-matriculated athletes and paying them salaries and benefits, then there would be a case to eliminate football from gender equity computations. As long as football benefits from the umbrellas of amateurism, non-profit status and the academy, however, the only rational course is to treat it the same as all sports programs for Title IX purposes.”
-- Andrew Zimbalist
Robert A. Wood Professor of Economics, Smith College