Title IX: Some Violations That Are Difficult to Prove in College Sports

Arkansas did something rare in 2017-18 and 2018-19: It watched its baseball and softball teams make it to the NCAA Tournament. The similarities end there.

Despite the talk of gender equality in the NCAA tournament, a closer look at a school’s participation reveals just how much less is being spent on the Razorbacks softball team—a disparity between men’s and women’s programs in college track and field is not uncommon.

The Arkansas baseball team’s budget for player meals, meal allowances and snacks is nearly triple that of the softball team, averaging $1,123 per player versus $400 per player, according to public records and fairness filings under the Track and Field Disclosure Act. Equipment variances were about the same, averaging about $1,966 per baseball player and $740 per softball player.

Perhaps the most obvious measure of comparison is the recruiting budget: the softball team’s entire intramural and extramural budget totals about $46,000 per season. That’s $14,000 less than the baseball team’s budget for just on-campus, which received an additional $60,000 for off-campus recruiting, for a total of $120,000.

On the surface, there appears to be a Title IX problem. Under a law marking its 50th anniversary this week, the athletic department must provide equitable benefits for equipment and supplies, travel and per diem, housing and dining facilities, and recruiting resources and opportunities.

But Title IX compliance does not imply overall equivalence, nor should it be used for direct comparisons between similar sports, as any benefit in favor of one gender may be offset in another. For example, you can’t compare Arkansas’ baseball team to a softball team and expect to win a Title IX challenge. You can’t do the same for men’s and women’s basketball in Arkansas, even though the men get double or triple the money for food, recruiting and equipment.


PHOTOS: Title IX: Some of the hard-to-justify violations in varsity sports


“There are many misconceptions about analyzing fairness in athletics from a compliance perspective,” said Title IX expert and former Division I athlete Leah Reynolds. “It’s not always apples to apples.”

Recent lawsuits and federal complaints alleging violations of Title IX, especially during the pandemic, have focused on colleges cutting overall sports teams’ apparel while citing millions in savings.

Fundamentally, the question is whether the ratio of male to female participation in sports is “substantially proportional” to undergraduate enrollment. The cases here are also difficult to prove: they often involve figuring out whether schools are manipulating roster numbers, and the general lack of Title IX case law can lead to different interpretations by judges.

Reynolds said the sports department may be looking at the cuts from a purely financial perspective, “without considering the larger impact — that’s Title IX, because you can’t make the kind of hasty decisions in the sports department that you can in other areas.”

So when threatened with lawsuits, some schools resumed athletics, such as William and Mary did for women’s gymnastics, swimming and volleyball, while Dartmouth offered men’s and women’s swimming, diving and golf and men’s light Heavyweight rowing.

Other schools settled the lawsuit, like the University of Connecticut. Its women’s rowing team won a temporary restraining order after accusing it of violating civil rights. In this case, the University of Connecticut was accused of inflating the women’s rowing roster (20 more than its competitors) in its EADA report.

The U.S. Department of Education’s Office of Civil Rights investigated and settled the other allegations. Western Illinois settled in February after suspending and cutting its men’s and women’s swimming and diving teams in 2020; the agreement also calls for schools to make coaching salaries and recruiting spending more equal.

Other teams’ struggles continue: Members of the Michigan State women’s swimming and diving team resumed their lawsuit earlier this year, and the same happened to members of the Fresno State women’s hockey team in July 2021.

These recent cases and investigations rely on the so-called three-pronged test, which shows that a school is in compliance if it meets one of three conditions: Based on full-time undergraduate enrollment, there is a “substantially proportionate” opportunity for participation ; When a gender has been or remains underrepresented in athletics, the school may demonstrate a “history and ongoing practice of program expansion”; or the school may demonstrate that the “interest and ability” of the underrepresented gender has been “sufficiently valid” adapt.”

The athletic department must submit an annual document to the education department detailing revenue and expenses and the number of people on the roster. But experts say that’s where schools have had to respond to allegedly manipulating numbers to show proportional odds — such as reporting roster inflation across sports and then cutting some athletes.

“Just because a business claims certain income and certain deductions on its tax return doesn’t mean those numbers are accurate,” said Kristen Galles, a veteran plaintiff Title IX litigator. “Sometimes it takes an audit to find the truth.”

U.S. District Judge Stefan Underhill, who handles the UConn and Title IX lawsuits, said the three-pronged test case “is very, very fact-dependent, which can lead to seemingly differences between the judges and how they decide.” A lawsuit was filed in 2010 against Quinnipiac’s cheerleading team.

“It’s always problematic when there isn’t a lot of case law,” he said. Underhill wants to see the federal government update its guidelines soon, noting the last major clarification from the OCR was 26 years ago.

“Things have changed since 1996, and in my opinion, there is a need for…guidance that the court can interpret and apply, and it should come from that source, rather than me looking at the 1996 clarification and another judge looking at it and reach different interpretations,” he said.

A common thread in all the lawsuits is that “everyone knows there’s inequality,” said Felice Duffy, an attorney and Title IX litigator and lead attorney for the plaintiffs in the UConn case. The challenge, she says, is an ingrained culture.

“All of these people are team players,” Duffy said. “The last thing you want to do is move on and say, ‘Hey, there’s a problem!'”

Copyright © 2022 The Washington Times, LLC.



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