National Collegiate Athletic Association |
CommentJune 8, 1998
Guest editorial -- Schools should use flexibility of Title IX
By Valerie M. Bonnette
A frequent refrain of late and one reiterated at the seminar is the concern that Title IX is causing the elimination of men's opportunities, said to be ironic because the law was intended to increase opportunities for women. As Arthur Bryant, executive director of the Trial Lawyers for Public Justice, stated so cogently at the seminar, Title IX was not, in fact, created to increase opportunities for women. Title IX was created to require equal opportunity. No matter how extensive or how limited, how good or how bad the quality of any opportunities may be, equal access to those opportunities is what Title IX requires. The equal access requirement for athletics is addressed by a three-part test, so talked about, yet so rarely understood. The three-part test, which involves just one of 13 Title IX areas of review, was adopted by the federal government in 1979. Some women's advocacy group representatives suggest that the first test -- proportionality -- is the only valid method of compliance. Some men's advocacy group representatives suggest that proportionality is the only enforced method of compliance, so men's opportunities are being eliminated due to a numbers game. Under Title IX, neither statement is accurate. Unfortunately, in an uninformed and misguided quest for proportionality, some administrators are needlessly cutting men's opportunities. Under Title IX, the underrepresentation of women in the athletics program is not, by itself, a compliance problem. If equal opportunity is provided and students of one sex choose not to take advantage of the opportunity, an institution has met its obligations. In other words, if equal opportunity truly exists, then participation rates are irrelevant. A compliance problem arises only when women are underrepresented and the institution fails to offer a sport to women that it could be offering. Thus, an institution need not even consider limiting men's opportunities unless it is already discriminating against women. (Of course, the reverse can be true in rare instances where men are underrepresented in athletics.) Before an institution need conclude that it is not offering a sport that it could offer, there must be sufficient interest for a team, potential ability for intercollegiate competition and sufficient competition in regions where the institution normally competes. So why has a 1979 policy been such a hot topic of the 1990s? Because it has been only in the last 10 years that many institutions stopped complying with the three-part test. The federal government's policy allows an institution a choice of which one test of three tests for compliance it will meet. Institutions may provide participation opportunities proportionate to enrollment, or demonstrate a history and continuing practice of program expansion for the underrepresented sex, or fully and effectively accommodate the interests and abilities of the under-represented sex. In 1979, the federal government did not expect that many institutions were offering participation opportunities proportionate to enrollment. Nevertheless, any civil rights review begins with this analysis. If those previously denied equal opportunity appear in the smaller population (participation in athletics) to the same extent as they occur in the larger population (enrollment at the institution), then compliance is presumed. But the federal government, understanding the questionable legality of "proportionality" as the sole test, created test two. In 1979, many institutions met test two -- providing a history and continuing practice of program expansion to women. This is because, with the 1972 enactment of Title IX, many institutions began adding women's teams. Institutions understood the need to create more women's opportunities if they were to maintain their current men's opportunities. Because many institutions had recently added women's teams and had plans to add another team or teams, they had established a history and continuing practice of program expansion for women. If institutions did not need to add any more women's teams in 1979, it was because they were meeting test three: They offered every sport for women for which there was sufficient interest, ability and available competition. While many institutions complied with the three-part test in the late 1970s and early 1980s, progress slowed from 1984 to 1988 when the federal government's jurisdiction over athletics programs was limited by the Supreme Court's decision in Grove City College v. Bell. It is debatable whether this showdown was caused by the federal government's limited enforcement authority, growing budget concerns for institutions, the mistaken belief that enough women's teams had been added even though women remained significantly underrepresented in the program, or a combination of all of these factors. By the late 1980s, many institutions had neglected to add women's soccer, softball, lacrosse or other sports in which women's interests had developed and expanded. Consequently, many institutions had not added any women's teams for several years; women were still significantly underrepresented in the athletics program, and there was sufficient interest, ability and competition for a women's team not being offered. As a result, many institutions failed to comply with any one of the three tests. In the 1990s, some institutions that discontinued viable women's teams when women were already underrepresented in the program found out in court what equal opportunity means. In requiring equal opportunity, Title IX does not accept revenue production as a justification for disparate treatment. Moreover, Title IX is patterned after Title VI of the Civil Rights Act of 1964, the landmark law that prohibits discrimination on the basis of race, color and national origin. Title VI contains no provision stating that discrimination on the basis of race is all right if complying with the law makes operating someone's business challenging. Similarly, as a civil rights law protecting individuals against sex discrimination, Title IX contains no exceptions permitting disparate treatment for business-related reasons. In 1974, Congress specifically rejected an amendment that would have done just that. Current administrators not party to past discrimination may find they are the party charged with resolving discrimination that continues on their campuses. While those NCAA Division I-A administrators operating self-supporting athletics programs may perceive Title IX as a particular challenge, the law permits more flexibility than most administrators are aware, and it is this flexibility that administrators should explore to the fullest. One approach suggested at the Chicago seminar for handling the fiscal issues in achieving compliance with Title IX came from a panel of currently and recently graduated student-athletes. The students suggested to a ballroom full of administrators that they ask their student-athletes for ideas for addressing financial concerns in their Title IX compliance efforts. The students predicted that athletes on the administrators' respective campuses would help cut costs by demonstrating the same teamwork that makes them successful athletes. The panelists, including two football players, stated that student-athletes could identify many benefits in such areas as equipment and supplies, travel modes and per diem, facilities, housing, etc., that they could do without or do with less if it means saving the wrestling, gymnastics, field hockey or any other team. Many administrators seemed to take notice as each student panelist articulated this unselfish, teamwork approach. As panel moderator University of Kansas athletics director Robert E. Frederick noted, our future is indeed in good hands. Considering the flexibility permitted by Title IX, achieving compliance on most campuses can and should be painless. But identifying the painless methods may require education, creativity, flexibility, teamwork and patience. Administrators should explore all options before limiting anyone's opportunities. After all, the decisions of administrators affect the lives of our students and, consequently, the future for us all. Valerie M. Bonnette is a former staff member of the Office for Civil Rights who co-authored the 1990 Office for Civil Rights Title IX Investigator's Manual. She now heads Good Sports, Inc., a Title IX and gender-equity consulting service. Comment -- Athlete builds on her survival instinct
BY LISA SMITH It's about survival. Some days, I'm not sure if I will survive. It's the constantly pounding heart, lungs gasping for air, feet pounding to the ground, muscles tense. Jaws set. I will not let it defeat me. I am an athlete. But not really a typical one. I am a junior in my first season of collegiate athletics. After two years of running on my own, I knew it was time for something new. Sometimes I run with friends, but I needed more. Something inside was pushing me to do what I didn't think I could. I was yearning for someone or something to take me to that proverbial edge and beyond. I tried to ignore it, but it was primal, urging and ever-present. One day, I found myself sitting in the coach's office. I tried, but I couldn't stop that gnawing feeling that this was something I needed to do for myself. I was in a whirlwind. I was filling out forms, doing preseason workouts and pumping iron. Suddenly, I was an athlete. Suddenly, I had to adjust my schedule and reprioritize my life. Suddenly, every muscle in my body ached and screamed to my brain for mercy. I thought I was in pretty good shape. I learned a lot during those first workouts. First, I learned to survive. There were several days we ran for an hour straight, and in the mud, no less. Some days we did sprint intervals that left us with dry mouths and queasy stomachs. I walked--no, crawled--away from many of those practices fighting back tears. My mind had to learn how to survive, too. Track is a mental exercise. It is mental toughness that keeps a runner going when her legs feel like jelly and her lungs feel like exploding. How primitive and beautiful, to reach down into the very depths of one's soul to find what it takes to keep going when your body is exhausted. Every day, I fight to find it. It's a lesson in survival of pride. Sometimes, it doesn't survive. I am learning about humility. You see, I often find myself in last place, especially in practice. Oh, I'm tenacious and stubborn and determined, but still I often find myself at the end of the pack. I don't like to be last. So I keep pushing and keep working, fighting to run with the pack. Sometimes, the coach sees that I am struggling, and he tells me to run a little less, run a shorter distance. I usually don't listen. If I am surviving, I will keep fighting. I survive the meets, somehow. There's a burst of adrenaline, and I am running. I have only seconds to prove that the months of struggling have made me strong. I see the stopwatch. Four seconds slower than my high-school time. I feel defeated by a piece of plastic. But not for long. I am back with a vengeance the next week, again and again. I survive to live for the small victories. I set my sights high but always celebrate survival. When I stride past a girl in a different color uniform, I celebrate. When I can keep up with the pack, I celebrate. When I wear the team sweats, I celebrate. When coach comments on a job well done, I celebrate. I celebrate because I survive. And I am surviving. I love it. Lisa Smith is a junior at Wartburg College, where she is a member of the women's track and field team. Opinions -- More frequent forums would benefit student-athletes
Loren Johnson, football player "I'm like everybody else. We can go on for days about the questions I have, but every organization needs a head, and the NCAA is our head. They set the rules, and we have to follow them. At some time or another, they need to get the players' input like they're doing here (at the NCAA Foundation Leadership Conference), but it needs to be more than once a year. "It needs to be continuous -- once every two months or once every six months -- because there are always ideas that come up."
Creatine
Dave Boling, columnist "Is taking a food supplement like creatine cheating? "No. And usage is currently widespread at all levels of competition. "Does that make it smart? "I don't think so. "Because few long-term studies of side effects have been made. Just as it was almost 30 years ago when a doctor told me that steroids were safe. "Maybe there are no problems with creatine. But do you know who the test rats are for this? YOU! "You guys who are taking it. "Studies have cleared creatine as a factor in the deaths of three wrestlers during a span of six weeks last fall. "Fine, but I personally have to be suspicious when there had been no deaths under such circumstances for as long as the NCAA had been keeping track of such things until three athletes who were using it died in a short span of time. "Granted some people can abuse substances for a long time without having a problem. (Grateful Dead tours proved that.) But some people are physically more vulnerable. "I'll grant that there may be a hint of hypocrisy to what I'm saying here. "A lot of guys in the press box drink a pot of coffee to get them revving before deadline and then need some beers to help get them to sleep. It's the Elvis Presley Starter Kit For Sportswriters. "And if a realtor could come up with a pill that would get him more sales, he'd take it. "If a stockbroker could mix a substance to help him divine a real money-maker, he'd brew up a batch, side effects be damned. "The trouble is, from a competitive standpoint, it's all an arms race that does nothing but escalate. "The guys I'm competing against use it and I have to if I want to keep up, you say. "It's an argument, sure. "But not a good one. "Maybe this new stuff will work wonders and you guys will benefit in your sports. "I just think that, at some point, a debt will be collected. "Because nothing comes for free."
College tennis
Dick Gould, tennis coach "College team tennis is . . . one of the best-kept secrets there is. When you get a match that ebbs and flows in emotion a few times, it's very exciting, and very few people realize that. It's one of the most exciting amateur sporting events in the world."
High-tech bats
Jim Easton, chairman "I talked to a coach at the College World Series last year and he said to me: 'Can you believe that shortstop just hit a home run? That shouldn't happen.' "I say, why shouldn't it? College baseball is supposed to be fun for scholar-athletes, not a training ground for the major leagues. Why shouldn't that shortstop have the opportunity to hit a home run? We're just making a bat that fits him better. All it did is level the playing field. It's still the player's talent. Hitting a baseball is one of the hardest things to do in sports.... "There are three reasons why the offense is so high in college baseball. The players are bigger and stronger. The balls have been made livelier in the past three years. And the umpires are not calling the strike zone correctly. When you call a smaller strike zone, you're going to get more balls that the hitters can hit hard."
Al Barton, high-school baseball coach "It's an accident waiting to happen. Somebody is going to get killed in the College World Series someday."
Jeff Albies, baseball coach "They'll tell you the players are getting stronger, the pitching is not as good, the parks are smaller. But they're just justifying the money they've put into the bats three years down the line. But if the bats are really so good, then why haven't the big leagues gone to them? They're the experts in baseball. Because they know that one of these bats in the hands of a major-leaguer would be lethal."
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The NCAA recently sponsored its seventh Title IX seminar in four years. As was true of the previous seminars, the one in Chicago was excellent and reaffirmed the Association's leadership role in educating its membership and the public on this much misunderstood law.