By Nancy Hogshead-Makar
Published: January 9, 2003
Dear George Will,
You've picked up a trial lawyer's tactic: If you don't have the facts or the law, pound the table. Allow me to set the record straight: Title IX, the law, does not ever require cutting a team for compliance and is not the culprit behind cutting men's sports. And the fact is that it's the arms race in athletic departments that harms all other athletes and threatens the educational mission of athletics. Specifically, your segment was factually and legally inaccurate in the following ways:
You don't have the facts:
1) You assert that Title IX did not help women's athletics, and that women's gains were inevitable because of “cultural” changes. But George, hundreds of women can testify that they used the law to demand opportunities from their athletic departments as soon as the law passed -- long before any regulations had been written regarding athletics. Over the past 30 years, hundreds of women have had to sue under Title IX just to be able to participate. Probably thousands more had to threaten to sue just to get their uniforms paid for. When Title IX was not in effect due to the Supreme Court Grove City decision, women lost athletic opportunities. Women still lag behind men in virtually every indicator -- participation opportunities, operating budgets, recruiting dollars and scholarships -- despite 30 years of Title IX and despite women being the majority on campuses nationwide. The promise of Title IX is still unfulfilled despite enormous cultural changes.
2) You assert that Title IX has “produced the elimination of more than 400 men's teams”. But George, to only acknowledge men's sports teams that have been cut is seriously misleading. The GAO, the agency that conducts studies relied upon by all branches of government, found that men's opportunities had increased both in the number of teams offered and the numbers of individual opportunities to participate. While some men's sports declined, overall they increased. Other men's sports have exhibited rapid growth, such as soccer where 120 new men's programs have been created.
Women's teams have also lost teams during the same time period. For example, while men's gymnastics lost 56 intercollegiate teams; women gymnasts in that same period lost far more -- 100 teams! To suggest that only men's sports are being cut back, and that overall men are losing athletic opportunities is clearly not the case.
The GAO study also found that most schools (72%) that added women's teams did so without discontinuing any teams.
3) You assert that “more young men than young women care about playing sports.” Says Who? You, George? Please share this startling research.
The United States Constitution prohibits unequal treatment based on these sorts of unproven gender-based stereotypes. They are flatly illegal. But they're nothing new. Thirty years ago, when just one of every 27 high school girls played a sport, we were told the reason girls didn't play sports was because we weren't as interested in sports.
The last 30 years shows irrefutably that interest is a function of available opportunities. Girls and women have rushed to fill genuine participation opportunities as schools have created them, despite the oftentimes second-class treatment they receive. One out of every 2.5 high school girls is now an athlete. Girls in high school now are participating at a rate of 2.8 million per year – an 800% increase from pre-Title IX participation rates. While fewer than 30,000 women participated in college sports before Title IX, today that number exceeds 150,000 – five times the pre-Title IX rate. With these enormous participation rates, how can you “pronounce” that women aren't interested in playing sports?
Demand for sports participation by both boys and girls far exceeds our schools' resources. For every collegiate athlete, there are 330 high school athletes. And with 2.8 million girls playing high school sports, it is inconceivable that colleges cannot find women to play on the teams they create. That's akin to the National Football League claiming it can't find enough football players to play in its league, when each year they draft less than two hundred players from a pool of 60,000 NCAA football players.
As a legal matter, if a school does not have unmet demand for a potentially viable competitive team, if it is providing opportunities for the women athletes who attend the school and have the ability to play and want to play, then the school will be in compliance under the third prong of Title IX's participation test. It is the huge demand for women's sports keeps particularly large institutions from relying on this test to provide fewer opportunities than required under the proportionality test. But this just proves the point that girls are interested in sports.
The myth you perpetuate that women aren't as interested in sports persists stubbornly despite the powerful reality to the contrary. Young women continue to be hampered by schools that fail to field teams because of these outmoded stereotypes that virtually everyone agrees are not provable.
You don't have the law:
1) You assert that “the number of roster spots on women's teams must be the same proportion of women's total enrollment in the school as the number of men's roster spots is of men's enrollment.” But George, surely you know that there are two other widely used tests for Title IX compliance, and that most schools do not rely on proportionality – the so-called Prong 1 – to demonstrate compliance. Only 21 of the 74 schools reviewed by the Office of Civil Rights between 1994 and 1998 used the proportionality test. In other words, less than one third of the schools investigated relied on the proportionality test that you characterized as the way schools “must” comply. The other 53 schools complied under Title IX's other two tests.
Prong 1 or “proportionality” is appropriate when a school has girls and women ready to participate, and the school has not shown a history of continuous improvement for it's female athletes. It is the enormous demand for women's sports that prevents particularly large schools from meeting Title IX's two other tests without matching opportunities provided to men.
2) You assert that “Because Title IX has made a dogma of such proportionality, many schools have had to achieve equality partly by reducing the number of male athletes by killing men's [] teams.” Title IX never requires cutting a men's team in order to come into compliance. Title IX has become the “whipping girl” for a school's budget decisions. The richest Division I athletic programs are cutting men's programs, while Division II and III schools, the poorest colleges and universities, are not dropping men's sports. These wealthy schools may claim that they can't keep men's sports and comply with the law, but there are plenty of new dollars going into Division I college athletic programs that could fund both women's sports and men's Olympic sports. NCAA research shows that for every three new dollars going into college athletic programs over the last five years, two are going to men's sports and only one to women's sports. These new monies, however, are being used to fuel the athletic arms races in football and men's basketball. The new monies going into women's sports is not closing the significant men's and women's sports expenditure gap and the majority of the new money going to men's sports is pumping up the already bloated budgets of men's football and basketball.
History reveals the same type of decisions in other civil rights contexts. The 1960s saw new desegregation laws that required public parks and swimming pools to be integrated. Some communities chose to close these facilities rather than integrate. We all generally agree today that the moral blame for those past decisions should be placed on the communities that closed public facilities for their hostility to the principles of racial equality – not on the law. This is exactly where the moral blame lies for discontinuing viable men's teams – with the school making the choice, not with the law.
3) You assert that “[Title IX] rules mistakenly equate equal participation rates with equal opportunity...” No, George, you're confusing the gender-blind math and dance departments with sex-segregated athletic departments. Athletic departments cannot and do not operate in the same gender-blind manner as the other departments within a school. A college must decide – well in advance of an athlete's high school sophomore year -- how many teams they will be sponsoring when that high school athlete eventually becomes a college freshman. A school creates the demand and then recruits athletes to fill the demand created. As courts have ruled when closely examining this issue, “determining whether discrimination exists in athletic programs requires gender-conscious, group-wide comparisons.” Title IX simply requires that schools allocate these school-created slots in a nondiscriminatory manner.
You're just pounding the table:
1) “Some feminists for whom Title IX is a fetish oppose revising the enforcement rules.” An apology, please George, to women and men who are fighting to preserve a law that holds sports' experiences should be equally available to both our sons and our daughters in our schools. Supporting revisions that do not involve weakening the protections provided to women is not a “fetish”. Some of the many alternatives to achieving gender equity while retaining men's sports outside of tinkering with Title IX and its regulations include: an anti-trust exemption for collegiate sports to cap million-dollar coaching salaries, legislation halting the “arms race” in football and men's basketball, limiting the number of football scholarships from 85 to 60, NCAA regulations disallowing member institutions to cut men's sports, among many others.
2) “Dogmatism Over Common Sense” As an Olympic Champion, I can assure you that the current spending in football programs defies common sense. It has nothing to do with making better athletes or a more exciting spectator event, and everything to do with fierce competition to attracting unpaid athletes to the school.
The alternatives to weakening Title IX for women stand a tough sell against these football interests. Yet powerlessness is the basis upon which civil rights laws, including Title IX, are based. Powerlessness does not make keeping hyper-inflated men's budgets at the expense of all other athletic opportunities moral or ethical. Indeed, Title IX is designed to guard against just this sort of gender discrimination in athletic budgets and resource-allocation decisions. Do not confuse the (un)ethical choices that some athletic directors have made with the ethical values that the current law and regulations embrace.
ConclusionTo use a softball analogy, you “whiffed”. In just 291 words, you made an enormous number of factually insupportable claims, perpetuated cultural myths and misstated the law. Everyone knows the real culprit behind losses to men's teams is the athletics' arms race, one that hurts all other sports and indeed, is contrary to the education mission of athletics. The fact that some schools are hostile to Title IX and make choices inconsistent with the school's educational mission does not imply that women should be afforded fewer athletic opportunities. The wrong-headed decisions of athletic directors are the problem, and weakening effective civil-rights laws is not the solution. Yes, you have an opinion George, but it's divorced from the factual reality that women still need legal protection from people like you who do not believe women are as deserving of the educational experience that is sports participation.
Sincerely,
Nancy Hogshead-Makar
Olympic Champion
Assistant Professor of Law
Florida Coastal School of Law