By Donna Lopiano
Oral Statement Before the Commission on Opportunity in Athletics
November 20, 2002 – San Diego, California
Donna A. Lopiano, Ph.D.
Executive Director
Women's Sports Foundation
I do not envy your task. It will be easy to get lost in the stacks of information, conflicting statistics and emotions of the passionate people on both sides of the issue. However, I am here to suggest that your task may not be as difficult as it seems.
The heart of the situation is this…
In education or athletics, we live In an environment of finite resources. Forgive the oversimplification, but, prior to Title IX, there was only $100 and male athletes received 100% of those resources and 100% of the opportunities to play. Title IX happened. Now those resources must be shared with female athletes. Very few schools were able to go out and raise 100% more resources to provide the same opportunities and resources for both male and female athletes.
At almost every school, male athletes lost something…preferred practice times, playing in the biggest gyms, maybe scholarships or lower budgets. Most were able to keep their opportunities to play. At some schools, those who didn't want to cut the budgets of some men's sports, chose to cut some men's sports programs instead.
Schools have made different philosophical decisions about the use of their financial resources. In most cases, at best, previously advantaged male athletes are not happy about sharing the resources they previously had all to themselves. At worse, they are not happy about losing their opportunities to play.
The athletes who lost their opportunities to play want you, members of the Commission, to fix it – to make their schools go back and decide to cut sport budgets instead of sport programs. You can't. Unfortunately, it is not possible for the Commission or anyone on the outside to intercede at the institutional level to give them what they want – better decisions that put their programs back in place. The only thing you can give them is weakening Title IX, giving up on the principle of equal opportunity and changing the law to restore an advantaged position to male athletes. Something the public doesn't want you to do. So, the Commission is between a rock and a hard place.
Three points…
One. It's okay to have sympathy for male athletes who have lost their sports. But you cannot discriminate on the basis of sex in your sympathy or empathy. You must also care about women who for many years had no chance to play, who still have fewer opportunities to play and less support when they do play.
Two. As hard as it might be, an unhappy previously advantaged class is inevitable. In all civil rights law, be it race or gender, the advantaged class perceives a loss when they must give up generations of privilege and advantage. Those feelings and circumstances are real and cannot be fixed. As a life lesson “sharing the sandbox” is one of the more difficult lessons. Let's not kid ourselves, the advantaged gender would like you to weaken the rules governing the sandbox.
Last point. The proposed use of interest surveys to replace the proportionality standard is preposterous and it will not stand up in the courts. The use of the results of administering a culturally biased attitude assessment instrument to reduce the basic obligations of educational institutions to provide equal opportunity is invalid. Such uses have been attempted and unequivocally rejected by the courts. You cannot in good conscience consider such use of interest surveys. There is currently an appropriate place and use for these instruments, only in conjunction with other considerations, in Prong 3 of the Title IX participation test. This qualified and appropriate use of interest surveys has been upheld by the courts. You must read the 1996 clarification of the three-part test. It is a critically important document.
But, I want you to think about this interest argument. It obscures reality. This is not about interest. It's about vying for the gold ring. There are six million high schools boys and girls playing varsity sports who are trying to get one of those 400,000 opportunities to play college sports. Up there is $1 billion in scholarship money, billions more in travel and special treatment and support as well as preferred admissions to the nation's most prestigious collegiate institutions. It is preposterous to suggest to female athletes or their parents that they are not interested in this gold ring. The notion of creating an instrument to disprove their interest is as preposterous as suggesting that Black or Hispanic students are not as interested in law or medical school scholarships and degrees as white students.
In closing, I respectfully urge the Commission to take four positions:
1. To reaffirm your commitment to the law as it is currently written…it has withstood the test of time and repeated reviews in our courts…it is good law that has created steady progress toward equal opportunity
2. To recommend better enforcement of the law by the Office of Civil Rights…there are still too many schools dragging their feet
3. To recommend that the Department of Education and the Office of Civil Rights better educate colleges and universities about prongs two and three -- athletic directors out there and probably right here in this room have no idea how to use this part of the law
4. To recommend to national athletic governance organizations to do the one thing that can truly save opportunities for male and female gymnasts and wrestlers and walk-ons when we have finite or declining revenue sources…capping athletic expenditures in as many ways as are possible, even if it means the use of a limited anti-trust exemption to make it less likely that schools will choose to cut programs because of budgetary pressure.
Thank you for this opportunity to present these views.