Title IX: Some Violations Are Hard to Prove in College Sports

Arkansas did something rare during the 2017-18 and 2018-19 seasons: It saw its baseball and softball teams reach the NCAA Tournament. The similarities end there.

For all talk of gender equality in NCAA championship events, a closer look at a school’s participation reveals how little was spent on the Razorbacks’ softball team—a distinction unusual between men’s and women’s programs in college athletics. Not there.

According to Public Records and Equity in Athletics Disclosure Act filings, the Arkansas baseball team’s budget for athlete meals, meal allowances and snacks was nearly three times greater than that of a softball team, averaging $1,123 per player to $400 per player. Equipment disparities were very similar, averaging $1,966 per baseball player versus $740 per softball player.

Perhaps the greatest measure of comparison is the recruiting budget: The softball team’s entire on- and off-campus budget totaled $46,000 per season. This alone is $14,000 less than the baseball team’s on-campus budget, and baseball received $60,000 to recruit off-campus, for a total of $120,000.

On the surface, it might look like the game has a Title IX issue. Under the law to mark its 50th anniversary this week, athletic departments must provide similar benefits for equipment and supplies, travel and per-day allowances, accommodation and food facilities, and recruiting resources and opportunities.

But Title IX compliance does not imply overall equality, and should not be used for direct comparisons between similar sports because any gains in favor of one gender may be offset by those in the other. For example, you can’t compare Arkansas’ baseball team to its softball team and expect to win the Title IX challenge. Nor can you do the same for Arkansas men’s and women’s basketball, despite the men getting double or triple the money for food, recruiting and equipment.

“There is a lot of misunderstanding about how equity in athletics is analyzed from a compliance standpoint,” said Title IX specialist and former Division I athlete Leah Reynolds. “It’s not always apples to apples.”

Recent lawsuits and federal complaints alleging Title IX violations have focused on universities completely cutting off sports teams, citing savings of millions, especially during the pandemic.

The question, in basic terms, is whether the ratio of men’s athletic participation opportunities compared to women’s is “substantially proportional” to undergrad enrollment. Cases here can also be difficult to prove: They often involve detecting whether schools are manipulating roster numbers, and the general lack of Title IX case law can lead to differing interpretations by judges.

Reynolds said that athletic departments may have looked at cuts from a purely financial angle “without thinking about the big repercussions – and that’s Title IX, because you can’t make such hasty decisions in athletic departments like You probably can in other areas.”

So when lawsuits were threatened, some schools reinstated the sport, as William and Mary did for women’s gymnastics, swimming and volleyball, and Dartmouth for men’s and women’s as well as men’s lightweight rowing. Done with swimming, diving and golf.

Other schools settled lawsuits like Yukon. Its women’s rowing team won a temporary restraining order after alleging civil rights violations. In the case, UConn was accused of increasing the roster number of women (about 20 more than the competition) on its EADA report.

Other allegations were investigated and settled with the US Department of Education’s Office of Civil Rights. Western Illinois settled in February and then suspended its men’s and women’s swimming and diving teams in 2020; The school is also required by agreement to make coaching salaries and recruitment expenses more equal.

The battle continues for other teams: Members of the Michigan State women’s swimming and diving team reinstated their suit earlier this year, and the same happened to members of the Fresno State women’s lacrosse team in July 2021.

These recent cases and investigations rely on what is known as the three-pronged test, which states that schools are in compliance if they meet one of three: “significantly” based on full-time undergraduate enrollment. There are “proportional” participation opportunities; The school may show a “history and continued practice of program expansion” when one gender is under-represented or still under-represented in athletics; Or the school may demonstrate that the “interests and abilities” of the underrepresented sex have been “fully and effectively accommodated.”

Athletic departments must submit annual filings with the Department of Education, detailing such things as revenue and expenses and the number of people on the roster. But this is where schools have had to respond for alleged manipulation of numbers to show proportional opportunity, experts say – such as increasing roster numbers for different sports and subsequently cutting off some athletes.

“Just because a business claims certain income and certain deductions on its tax forms doesn’t mean those numbers are accurate,” said veteran title IX plaintiff Kristen Gales. “Sometimes an audit is necessary to find out the truth.”

U.S. District Court Judge Stephen Underhill said “three-pronged trial cases are “very, very fact-dependent and can lead to differences of opinion between judges and how they rule,” which handled the UCON case and a Title IX lawsuit. Filed on Quinnipiac’s cheerleading squad in 2010.

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

“Things have changed since 1996, and in my view … there is a need for guidance that courts can interpret and apply, and that must come from a source looking at the 1996 explanation contrary to mine And another judge is looking into it. And reaching different interpretations,” he said.

A common thread across all lawsuits is that “everybody knows there’s inequality,” said Phyllis Duffy, an attorney and Title IX plaintiff who was lead counsel for the plaintiffs in the UConn case. The challenge, she said, is taking on a deeply embedded culture.

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

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For more on the impact of Title IX, read the AP’s full report: Video Timeline:

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