June 23, 2010

Why it’s time to get beyond Title IX

Filed under: Wendy Parker — Tags: , — wendyp @ 6:58 am

There isn’t a young girl or grown woman in America who’s taken up playing basketball — or any other sport — and who hasn’t received a constant reminder of the hard-won privilege she enjoys to be able to play the game she loves.

The activists who fought the necessary battles to open up the courts, fields, pools and coaching and administrative ranks for females in sports have influenced a generation of women who know that they owe their opportunities largely to the passage of a federal education law 38 years ago today.

Title IX is properly credited with ushering in the explosion of participation in sports for females across the board, and most notably basketball, the so-called “flagship” women’s sport at the high school and college levels.

But there’s another side to its legacy that threatens to tarnish the positive effects and cloud the challenges facing a more globalized women’s athletics landscape. Ever since the mid-1990s, when Title IX activists began pushing for proportionality — something they deny, of course — the women’s sports movement has veered away from the noble intent of the law, and away from embracing any reasonable definition of fairness for young athletes of both genders.

I’m not alone in this assertion, and those of us who are critical of what has happened do not oppose Title IX, but rather the claims, tactics and objectives of its most dogmatic defenders. In my mind, these activists have badly damaged the embrace of women’s sports as much as any rank misogynist.

Best example of that: The Brown University saga illustrating the fanatical obsession with playing the “numbers game” that has become a life-and-death ritual for many Title IX activists.

This is absurd, of course, almost as much as Division I women’s basketball teams getting 15 full-ride scholarships under NCAA mandates, to just 12 for men, when few programs play even 10 players on a regular basis. This prevents some badly needed parity in women’s hoops, all for the mere sake of increasing the female participation head-count.

I got another eye-opener in this regard in 2003, at a federal Title IX commission hearing in Atlanta. By then, advocates for embattled men’s sports like wresting, gymnastics and swimming had mobilized, and lined up a bevy of speakers to emotionally describe how they had lost their teams — and their chance to play — because their schools had to play the numbers game. Women’s teams weren’t being added in some cases as much as the number of men were being reduced to avoid legal action.

Conversely, the speakers in favor of maintaining the Title IX status quo were equally dramatic. A hoops coach was nearly in tears talking about what the law meant to her as a former player, and to those she was coaching. Young girls too young to have heard the word “proportionality” before stepping into the auditorium were spouting similar sentiments, likely scripted, hardly convincing.

If sports make you stronger, I thought to myself, why are individuals on both sides reducing themselves to puddles?

Most recently, the Obama Administration earned its bona fides with the Title IX establishment by reversing a Bush-era policy that was rarely used and that few people outside a tiny cluster of activists, lawyers and athletics administrators even knew about. Yet media cheerleaders couldn’t contain their melodramatic glee.

Is this what Title IX has come to? Rigid postulating, staging photo-ops, browbeating critics, threatening and filing endless lawsuits and needlessly wasting time, energy and money haggling over numbers? Is this how petty Title IX activists — and to some degree their opponents — have become?

It’s time to scrap the three-part Title IX test for compliance — now 31 years old, dating back to the AIAW era, reflecting a very different campus environment for female students and athletes when I was in school — and start anew. The first thing to go should be the the noxious proportionality provision that is being used primarily as a bludgeon.

It’s also time for Title IX activists to make their peace with football, their convenient bête noire. Believe or not, their football antagonists have made some concessions over the years, such as reductions in scholarships. Some more cuts at the FBS level may be in order, and not just a loss in players. Do BCS schools really need all those assistants, and especially “quality control” coaches?

While football at the very top levels is going to get richer and more powerful with coming conference realignment, those wishing to take a hatchet to it need to be mindful that this is the funding source for most of the best women’s hoops teams in the land, and that also lose tons of money.

The NCAA needs to be more of an impartial entity on gender equity, instead of being part of the Title IX establishment. While the late NCAA president Myles Brand was indeed a champion of women’s athletics and should be commended for that, he also left athletics directors trying to balance Title IX and financial pressures to twist in the wind.

Brands’ successor, the newly appointed Mark Emmert, ought to do something like this: Call a gender equity summit inviting the Title IX advocacy and those wishing to reform the law, and demand that both sides bring to the table concrete, substantial recommendations for what they would give up in order to reach some kind of consensus. Along with input from athletics directors, coaches and athletes at member institutions, this could form the basis for taking to Washington an NCAA proposal to rework Title IX for the future.

Of course, all this would require learning the art of compromise, and the history of Title IX skirmishes indicates that nobody’s going to back down. What was I thinking? Smoking?

Yet the challenges facing women and sports now, and in the decades to come, will have very little to do with Title IX. The growth of women’s sports around the world — where Title IX does not apply — is increasing as greater legal and cultural freedoms for women are granted in countries that have long denied them. FIBA, the world basketball governing body, and FIFA, its soccer counterpart, are expanding youth world championships for girls, trying to encourage development of female sports in corners of the globe that have not been hospitable to that idea.

Here in America, ensuring the viability of women’s professional sports, and improving the grassroots development of young female athletes, should be of greater concern than whether State U should have started a women’s water polo team.

The futures of the WNBA, the LPGA and the Women’s Professional Soccer league are not guaranteed, and Title IX is powerless to save them. The ability of young girls to receive high-level training and competition before high school and college largely depends on a combination of volunteer parents and dedicated youth coaches in accelerated club programs that also fall outside the reach of Title IX.

Activists like to pay lip service to “Title IX babies” now in the pro basketball ranks, but they also have to go overseas to make some real money as the 13-year-old WNBA has been reduced to 12 teams and is struggling to create a presence in some of its existing markets.

The Title IX activists can’t be bothered with the cold realities of the business world that isn’t under any government mandate to even have a women’s pro hoops league.

At the same time, the Women’s Sports Foundation and similar organizations still expend far too many of their emotional energies and resources to sue the likes of Quinnipiac College — and get in a huff over whether cheerleading can be declared a sport.

This week, former WSF and Texas women’s athletics boss Donna Lopiano testified on behalf of the Quinnipiac plaintiffs. Naturally, she disdained the idea of cheerleading being counted as a varsity sport, although Maryland AD Deborah Yow — certainly no knuckle-dragger — has done exactly that to help with Title IX compliance at her school.

Moving beyond Title IX is obviously far outside the bounds of a coterie of women (and a few good men) who’ve become so enamored with political activism and pushing the levers of government bureaucracy and the federal judiciary that only the lawyers, to borrow a cliché, are getting enriched.

But moving beyond Title IX — or more specifically, the warped methods by which activists are demanding it be implemented — is absolutely necessary for women’s sports to grow and thrive.

Update: It seems like I’ve angered more than a few folks about what I wrote above, which is no surprise. Also not surprising is that they’ve chosen to repeat ideological talking points among themselves rather than respond directly here. Of course, there’s no way to comment on either of their blogs; commenting is disabled. They don’t want a dialogue with those who have a different point of view, accusing them instead of not being in possession of the facts.

The push for proportionality I referred to was not about the original regulatory implementation, as Erin Buzuvis at the Title IX blog contends, but by Bill Clinton’s civil rights officer in the Department of Education in 1996. Norma Cantù declared proportionality the only “safe harbor” for schools to comply with Title IX, which thrilled women’s sports activists. But athletics directors and university presidents rightly translated that to mean: Get the numbers right, or risk getting sued.

The compliance game changed irrevocably with Cantù’s clarification, and the Brown case unfolding around the same time. Title IX activists will never admit they don’t trust the other two tests, as they are written very nebulously, while proportionality is just the opposite. Those vast discrepancies alone are reason enough to revise the regulations.

Buzuvis finally states that anyone who cites the age of Title IX wants to repeal the law. That is patently false, she knows it, but she and her advocates carry on with such rhetoric. A hell of a lot of great things have happened for women in education and athletics in the past four decades, and it’s time that the law reflects where they are now, not in 1972. The activists are in a time warp, desperate to paint the plight of women in sports as a still-bleak one that requires their perpetual “mythbusting” efforts. As well as their perpetual indignance.

As for Helen at the Women’s Hoops Blog, well, bullet-spittin’ outrage is her stock-in-trade.


  1. I also don’t understand how people can’t see that competitive cheerleading can be a sport. When I played basketball in high school, our team was always in awe of the tumbling skills of the cheerleaders. I have a niece who is a very good gymnast and uses her skills as a cheerleader. Her team competes at the national level. Those kids work very hard and are in better shape than many of the “athletes” at the school. If they just started cheering, doing somersaults across the floor, splits and back flips in place, they would seriously injure themselves because they had not warmed up for an hour beforehand.

    Comment by CC — June 23, 2010 @ 8:29 am

  2. Sorry – I couldn’t get beyond the stunning ignorance and misinformation in this paragraph:

    But there’s another side to its legacy that threatens to tarnish the positive effects and cloud the challenges facing a more globalized women’s athletics landscape. Ever since the mid-1990s, when Title IX activists began pushing for proportionality — something they deny, of course — the women’s sports movement has veered away from the noble intent of the law, and away from embracing any reasonable definition of fairness for young athletes of both genders.

    You know neither the legacy nor the law behind Title IX.

    Comment by Helen — June 23, 2010 @ 8:52 am

  3. Hi Wendy,

    To extend our Twitter conversation, here’s my thinking on what you’ve written here.

    First, just to reiterate, I do believe that even the most reasonable legislation deserves a periodic evaluation. Given the fact that NCAA sports now are not at all what they were in 1972 I think that goes for Title IX as well. So in principle, I agree that we can engage in dialogue about improving the legislation without assuming an intent to repeal.

    That said, a few points of disagreement with the reasoning above:

    1. The idea that Cantu pushed for and irrevocably changed Title IX is not entirely accurate. In fact, she interpreted it exactly as written and much in the same way that the NCAA & football stakeholders involved in the original shaping of the legislation interpreted it. She merely called for enforcement and since the legislation already existed, enforcement is a reasonable demand. By “safe harbor” she did not mean that they would be immediately attacked, but that proportionality is essentially the first test AND the least subjective test. If that 1st test is passed, there’s no need to progress to 2 & 3. I see why you take issue with the “safe harbor” wording, but the rest of that paragraph in the document makes her point very clear. What makes it the safest of the 3 prongs as written is that it’s also the least subjective. “Continuing practice” and “interest” are nebulous, difficult to measure concepts that often depend entirely on one’s perspective.

    You could certainly argue that we need less subjective criteria to assess discrimination – but that has nothing to do with the Clinton administration adding teeth to it. Cantu did exactly what she said: she clarified it and once clarified it did trigger more action. But that was based exactly on the criteria previously established – the Nixon administration made the exact same argument that proportionality would be the key to protecting revenue producing sports.

    2. The idea of proportionality was accepted by the NCAA and football interests *because* it prevents “equality” in supporting “equity” – as long as schools have proportionality to stand on, these so-called “activists” can only push so far because football/men’s basketball make so much more $$ that equal funding is impossible. However, in the interest of the “activists”, proportionality does not necessarily mean “non-discrimination” either – it would be quite possible to imagine scenarios in which both proportionality and discrimination co-exist.

    3. Regarding this being a business, some would identify that as a problem given that the NCAA claims to stand behind a “principle of amateurism”. If that is the premise from which they act upon, then the goal would presumably be to support the physical, mental and social benefits of athletics irrespective of business interests. Men and women alike are entitled to those benefits as students. That’s not “activist ideology” – it’s the principle the NCAA stands for. It’s not radical to assert that as institutions of higher *education*, their goals must extend beyond “the cold realities of the business world”. The fact that we’ve now drifted into an alternate universe of skewed priorities does not mean we should suddenly abdicate them of their primary mission to educate. At the same time, the fact the we’ve drifted into an alternate universe of skewed priorities is also why we should revisit Title IX to make sure it’s properly upholding the spirit of NCAA athletics.

    4. I won’t speak for others, but I do know my interest in Title IX does not stem from being “desperate to paint the plight of women in sports as a still-bleak one”. So I would assume that people are holding our society to higher standards than currently exist. If that’s objectionable to you, I’d like to know why. But as you suggest, there is still room for growth and that will require continued dialogue based in the complete historical record.

    In many ways proportionality is a considerable step forward from where we were prior to Title IX when women were not even guaranteed funding but also a compromise in that it also doesn’t necessarily eradicate the discrimination that inspired the legislation to begin with. Normative cultural perceptions of gender, race, sexuality, etc simply do not change with the passing of legislation alone – the legislation merely mitigates the effects as culture continues to evolve.

    5. It’s difficult to believe that someone is genuinely interested in dialogue while routinely dismissing the opposing side as pushing empty rhetoric or talking points whenever arguments based on historical evidence are presented. At that point, it ceases to be a conversation about one’s reasoning. Based upon my understanding of what a dialogue is – an exchange of ideas with the intent to understand – listening is as necessary as talking.

    Comment by Q McCall — June 24, 2010 @ 1:38 pm

  4. So the question I have for you: what would you propose as a viable means by which to “get beyond Title IX”?

    Comment by Q McCall — June 24, 2010 @ 1:40 pm

  5. The Cantu clarification, along with the Brown case, made proportionality the de facto compliance method, and feminist groups were heavily involved in both of those developments.

    Whatever football interests did as proportionality was included in the 1979 regulations really doesn’t matter now; it’s how the sports regulations currently are being interpreted by the government, and particularly the courts, that has the effect of the law. That’s certainly how ADs understand it lest they get slapped with a lawsuit.

    The second test ought to have been satisfied by a lot of schools because so many of them have been adding sports in recent years. But again, activists almost routinely take issue with these claims.

    And as for the third test, they also make that difficult to satisfy by opposing any serious use of an interest survey when that very test is about accommodating the interests and abilities of female students. How do you know if you have done that when you can’t measure one of those components? It’s a nice bait-and-switch tactic.

    As for the NCAA’s “principle” of representing amateurism in sports, well, you do realize that the only amateur aspect of college athletics is the athletes themselves. Coaches, administrators and television executives are living off their labor rather handsomely.

    I do appreciate you replying here, but as for those who aren’t interested in dialogue, you might want to ask your friends why they don’t open up commenting on their blogs. They’d rather hide behind theirs and snipe than engage in any discussion where their ideas are challenged even mildly. I promise I will be civil, but I don’t think they’d ever reciprocate.

    Neither do they have any “viable means” for changing a thing. They don’t want to, obviously, because the proportionality standard is working just fine as far as they’re concerned.

    But I will add to the suggestion I made about having an NCAA gender equity summit. Instead of obsessing over numbers and participation head counts, athletic departments should better fund, resource and support women’s teams that already exist. A school I know that has met proportionality is doing just that. As a result, it’s becoming nationally competitive in women’s sports where it was wasn’t very good at all not that many years ago.

    Meanwhile, another school I’m thinking of has one of the best women’s athletics programs in the country, and more than half of the athletes there are women. This is at a major football program, too, but that school will probably have to add another women’s sport to get right with the numbers. It probably has passed the other two tests, but smartly doesn’t want to take a chance at getting sued. This is simply absurd.

    Another idea about what might be discussed at this summit: Examine what sports realistically can be added for women, where there is youth and high school participation and enough nearby competition for it to make sense.

    If you’ll notice the NCAA lists only four emerging sports for women: equestrian, rugby, squash and sand volleyball. I don’t see any of them taking off anytime soon.

    Comment by wendyp — June 24, 2010 @ 5:34 pm

  6. While I believe the Title IX elitist view of cheerleading is antiquated, I give full credit to the importance of the law that opened doors for females in athletics.
    It would be great to see dialog about the number of women coaches and athletic administrators at the high school and collegiate level. There is certainly a ways to go in that arena.

    Comment by Kimberly Archie — July 29, 2010 @ 2:08 am

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