Title IX's Pyrrhic Victory

ow the quest for "gender equity" is killing men's athletic programs

Former National Wrestling Champion Stephen Neal is grappling with his toughest opponent yet. The 6-foot-5-inch 270-pounder racked up numerous awards during his four-year wrestling career at California State University at Bakersfield (CSUB): He was a four-time All American and an Academic All American, and he took home the Heisman Trophy of wrestling, the Dan Hodge Award. Yet the heavyweight, who graduated in 1999, burns for one more win—not on a wrestling mat but in a court of law.

Neal's longest match started in 1996, when officials at CSUB announced plans to cut the wrestling team. It's not that the team wasn't performing. The only Division I sport at CSUB, the program had distinguished itself over the years, winning two PAC 10 championships and finishing in the top 10 in the NCAA finals three out of the previous four years. The problem had to do with "gender equity," the proportion of male to female athletes. Critics charged that CSUB, like many other colleges and universities, had too many men playing sports and was discriminating against women.

In 1993, when Neal was a junior wrestling at a San Diego high school, the California chapter of the National Organization for Women (CAL-NOW) was completing litigation against the California State University System, of which CSUB is a part. CAL-NOW claimed that the Cal State System discriminated against women in its athletics programs. A state superior court judge crafted a consent decree that gave individual CSU campuses five years to bring the gender breakdown of their student athletes and scholarships to within five percentage points of the breakdown in the student body. If a school's student body consisted of 55 percent women, then at least 50 percent of intercollegiate athletes needed to be women. On the financial front, total expenditures for men's and women's programs were to be within 10 percentage points of each other .

When he learned of the consent decree, CSUB wrestling coach T.J. Kerr knew he had a problem. CSUB's student body is dominated by women, 63 percent. And even though the school had seven women's teams and only six men's teams, men accounted for 61 percent of its varsity athletes. Kerr studied the issue and developed a plan, figuring that the way to comply with the court order was to expand opportunities. He took the initiative to start a women's wrestling team. "I started looking at the participation number of women wrestlers in high school—it had doubled over five years," says Kerr. "I was thinking if I could get women on my team, I could leverage this thing." School administrators denied his request for women's wrestling, but Kerr went around them and started it as a club sport. Soon he had 17 women on his team. Two even competed for the varsity squad.

The cuts came anyway. In late 1995, CSUB's athletic director capped Kerr's squad at 27 men, and the coach was forced to cut 10 male athletes. Five former wrestlers filed grievances with the school, alleging sex discrimination. Then Kerr was told he could carry a total of only 34 wrestlers, forcing him to cut seven women. In 1996, on the eve of the PAC 10 finals and the Division I championships, the Intercollegiate Athletics Advisory Committee, which advises CSUB's president on athletic policy, announced plans to cut the wrestling program to meet the consent decree.

Enough was enough, thought Stephen Neal, who'd experienced the damage on a personal level: His roommate, a freshman walk-on, was cut from the squad. "He didn't know what to do. He was in shock," says Neal, adding that the roommate ultimately quit school. Neal, along with 21 male wrestlers and eight female ones, filed suit against CSUB in the U.S. District Court for the Eastern District of California for sex discrimination.

The root of Neal's problem—and that of thousands of male athletes across the country—lies in the widespread push for gender equity in scholastic and collegiate sports. In California, Neal and hundreds of other male athletes have been affected by state law. Elsewhere, it's a federal law that's at issue: Title IX of the 1972 Amendments to the Education Act. Title IX sought to give women equal access to educational programs, including athletics. Now it's evicting men from the locker room.

Struck Out

There's no arguing that women didn't face a shortage of athletic opportunities in the 1950s, '60s, and early '70s. A year before Title IX's passage, only 294,015 girls played high school sports, compared to 3.7 million boys. "I was the classic tomboy growing up in middle America who played football, basketball, and baseball with my brothers and the neighborhood guys," recalls 50-year-old Mary Jo Kane, who teaches sports sociology at the University of Minnesota and directs the Tucker Center for Research on Women and Girls in Sport. "I lived to play those sports. But when I got to high school, there weren't teams available for me in those sports. So I did what a lot of girls in my generation did and started playing a more 'appropriate' sport, golf."

In the three decades since Title IX's passage, women's participation in school athletics has increased impressively. During the 1999-2000 school year, 2.7 million girls played high school sports, compared to 3.8 million boys, according to the National Federation of State High School Associations. In 1998-99, 148,803 women played NCAA sports, up from 80,040 16 years earlier.

"In one generation, young girls have gone from hoping there is a team to hoping they can make the team. That's an incredible difference," says Kane, who credits Title IX and the hard work of women's sports activists for this change—and who jokingly declares that she's never been a communist and still loves football. Women can now earn a living playing basketball in America. In 1999, the U.S. women's soccer team filled the Rose Bowl and captivated the country, beating China for a World Cup victory.

Still, Kane is frustrated with the pace of change. "Only 9 percent of Division I schools are in compliance," she says. "And that's 30 years after passage." Women still account for only about 35 percent of college athletes and garner less than a quarter of annual athletic operating and recruiting budgets.

Yet while the intent of Title IX was to provide opportunity for girls and women, today it is often applied in ways that do nothing but kill athletic opportunities for boys and men, an outcome no one claims to want. In the gender equity debate, few people blame Title IX itself, which, after all, seeks only to ensure equal opportunity for both men and women. Most women's sports advocates recognize there's a problem with cutting men's teams to equalize participation rates. But they blame the choices made by administrators who they say refused to restrain football programs. For their part, male coaches and athletes say they agree with the spirit behind Title IX. It's the rules promulgated by bureaucrats dictating hard gender-based quotas that are the problem.

Rhode Island's Providence College provides a vivid example of how Title IX often plays out. In the late '90s, Providence found itself in a familiar bind. Women accounted for 59 percent of its students, yet they were only 43 percent of student athletes. The school was facing a peer review by the NCAA, and it needed to show quick "progress" toward gender equity. Providence simply had too many male athletes, and the easiest course of action was to cut some men's programs to bring its numbers into line. In the fall of 1998, the administration announced that the 1999 season would be the last for the school's 78-year-old baseball team. After 2002, Providence would no longer support men's golf or tennis. Not one new women's team would be created, but the male-female ratio would still be greatly improved.

"Baseball, tennis, and golf were the three sports that, when you combine their resources together, delete them from the male side of the picture, [and] add those resources to the women's side of the picture, put…us in compliance with Title IX's proportionality mandate," explained Providence Athletic Director John Marinatto to the PBS special National Desk. School administrators had watched neighboring Brown University get sued and lose for not having its numbers right; they feared a similar lawsuit. "We just couldn't risk that kind of litigation," the Rev. Terence J. Keegan, Providence's executive vice president, told The New York Times. "We felt we were backed into a corner."

"I was trying to figure out if it was a dream or not," recalls former Providence baseball coach Charlie Hickey, who started as an assistant in 1991 and took over the program in 1996. "A lot of wild thoughts came to mind, a lot of hatred, bitterness. Then I had to tell 29 kids."

Providence outfielder Jason Hairston recalls the October day when the coach interrupted practice to deliver the news. "It was like someone had taken your heart out of you," he says. Hairston had good reason to be upset. Like others on the squad, he had chosen Providence because of its baseball team. As a high school senior in Connecticut, he'd made all-state teams in soccer and baseball and was heavily recruited in both sports by such schools as the Naval Academy, West Point, and Boston College. He decided to pursue his options in baseball because he found it more challenging. "People say I was better at soccer," says Hairston. "But I played baseball for the love of the game." He chose Providence because he liked its atmosphere, its location, its academic reputation, its standing in the prestigious Big East sports conference, and the relative largess of its scholarship offer.

The unexpected demise of Providence's baseball team forced Hairston to make a tough decision. He'd already completed two years of academics at Providence. If he played his junior year at Providence, the team's last season, it was unlikely that he'd be able to transfer and play his last year of eligibility at another school. Even if he was able to play his final year of eligibility, it would cost him academically. Most schools will not accept three years of academic work, so transferring would delay his graduation for at least a year. Hairston decided to stay and play at Providence. It's a decision he doesn't regret but one that came at a steep price for a young man who planned to play four years of Division I baseball, with the goal of getting drafted into the pros. "It made me give up my dream," says Hairston, who graduated last year and now works for KPMG Consulting. "I could have worked here, played Division I baseball, and showcased myself. Now I can't."

The same qualities that convinced Hairston to choose Providence—the school's size, familial atmosphere, and Big East schedule—were helping Coach Hickey produce the best baseball teams in Providence College's history. In 1995 and 1996 the team was the Big East season champion. Hairston's dream of playing Major League Baseball was hardly a pie in the sky. Two of Providence's recent graduates have made it, if only briefly, to the big leagues. Six or seven Providence alumni are sprinkled through the minor leagues.

The Biggest Quota

Title IX itself says nothing about athletics. It simply prohibits discrimination based on sex in federally funded education programs. "No person in the United States, shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance," states the relevant part of the law.

Title IX also says nothing about quotas based on population proportions. In fact, the law's creators emphatically argued against such things. "The thrust of the amendment is to do away with every quota," explained its chief Senate sponsor, Birch Bayh (D-Ind.). House sponsor Albert Quie (R-Minn.) similarly underscored that Title IX "would provide that there shall be no quotas in the sex anti-discrimination title."

Despite such intentions, Title IX has become, in the approving words of Rep. Maxine Waters (D-Calif.), "the biggest quota you've ever seen." Speaking at a 1997 House Constitution Subcommittee hearing, Waters emphasized that point, calling Title IX, "a quota—[a] big, round quota."

What happened? In 1979, following standard operating procedure, the federal Department of Health, Education, and Welfare issued a policy interpretation for athletics. Schools would be in compliance with Title IX, HEW decreed, if they met any one prong of a three-prong test: They could provide sporting opportunities to the sexes in "numbers substantially proportionate to their respective enrollments"; they could show a "history of continuing program expansion"; or they could show they were already meeting the "interests and abilities" of women.

In the 1990s, federal courts elevated this interpretation to the level of law. At the same time, they focused on the proportionality test as the only definitive means to prove compliance. A 1992 court decision further established that plaintiffs could collect attorney's fees and damages, which substantially raised the stakes for colleges and universities. Once compensatory and punitive damages could be awarded in Title IX cases, the lawsuits effectively became self-financing. Even when damages aren't awarded, public interest attorneys can bill the court at several times their actual costs. In fact, enterprising lawyers don't even need aggrieved plaintiffs; suits can be filed by anyone based on aggregate numerical disparities.

In 1996 Norma Cantu, assistant secretary for civil rights at the Department of Education, made it clear that while a school could theoretically meet Title IX requirements in any one of the three ways outlined by HEW, the only true "safe harbor" for a school was to offer "proportional opportunity." At the same time, Cantu redefined opportunity to mean the number of women playing sports, not the number of spots available on a school's teams. On this reading, explains Mark Martel, attorney for former CSUB wrestler Stephen Neal, "an opportunity equals an actual participant. So if a woman's team could have had 25 athletes but only 20 go out for the team, there are only 20 opportunities. If a men's team has 25 opportunities and 25 men go out, then there is unequal opportunity."

In short, what happened to Title IX is a classic Washington story. Ideological activists take words that appeal to a general sense of fair play, such as opportunity, and then redefine them. While they argue for their new definition in court, they simultaneously justify their actions to the public based on the old, common-sense understanding.

The redefinition of opportunity turns out to be critical to the new wave of Title IX enforcement, because men go out for sports in greater numbers than women do. Women's sports activists claim that in the absence of discrimination, women would play sports in equal numbers to men. "You treat sports the same way, and girls are just as interested in playing as boys," Donna Lopiano, executive director of the Women's Sports Foundation, told ABC's John Stossel on 20/20 in 1998. She said there was "no doubt in [her] mind" that discrimination is the reason girls and boys don't play in equal number. "If you build it," she told Stossel, "they will come."

There's some evidence for Lopiano's claim. Recall that in 1970 12 boys played high school sports for every girl. As the number of girls' teams grew, so did the number of female participants. In 1970 just one out of every 27 high school girls played varsity sports, according to Lopiano. Today that figure is about one in three. If women with athletic aspirations had simply accepted the status quo in the 1960s, we'd likely think the 12-to-1 disparity was "natural," simply the result of girls' preferences. Yet over the past three decades, millions of girls have filled up soccer fields, softball diamonds, lacrosse fields, and basketball courts.

Paying for Parity

Yet there is ample reason to believe that there is more to gender disparity in college sports than lack of opportunity—however that term is defined. If Lopiano is right, compliance with Title IX shouldn't be too difficult for schools: All they would have to do is offer the same number of teams for women, and the problem would go away. But this doesn't always work. Schools have indeed built sports opportunities for girls, but boys continue to turn out in greater numbers. Hence, as of 1998-99, there are more male college athletes (211,273 men vs. 148,803 women, according to the NCAA), even though there are more female teams (8,374 women's vs. 8,004 men's). In other words, women have more chances to play sports, but they don't take advantage of them as often. College-level intramural sports, which are purely voluntary, are dominated by men, with nearly eight in 10 athletes being male, according to a 1994 study by consulting firm Pacey Economics.

What might explain those numbers, if not discrimination? "Girls are interested in more things," says Kimberly Schuld, who works on gender equity issues for the Independent Women's Forum, a conservative, D.C.-based organization that is critical of Title IX. "They are more likely than boys to participate in multiple extracurricular activities, not just sports. If we applied a gender quota to other activities, it would destroy opportunities for girls in fields such as journalism, law, and science. Who would stand for that?"

Coaches and other investigators also challenge the idea that discrimination is at the root of numerical disparities. "Interest in sports has gone up tremendously among women," says Janet Sherman, head coach of the women's softball team at California State University at Northridge. "But is it as high as on the men's side? I don't think so."

"There's no question in my mind that women are less interested in playing sports than men," says Lamar Daniel, a former investigator at the Department of Education's Office for Civil Rights who conducted the very first Title IX investigation, back in 1978. Daniel went on to conduct over 20 reviews before retiring in 1995 to become a consultant. "But logically, in my experience, you can't prove that," he adds. "It's just not provable." In practice, Daniel says, this means schools must seek proportionality, either by adding women athletes, cutting or capping men's teams, or doing a little of both.

The University of Louisville opted for that last option. In 1997 the school brought in Daniel as a consultant to review its sports program. The new athletic director, Tom Jurich, had been forced to deal with the aftermath of a Title IX investigation at Colorado State, and he knew Louisville was legally vulnerable. At that time, women accounted for 52 percent of its students but only 33 percent of its athletes.

Jurich wanted Louisville to enjoy the safe harbor of proportionality, but he didn't want to have to cut men's teams to get there. He planned to build Louisville's program into compliance. He added three women's teams (softball, rowing, and golf) while cutting one men's team (indoor track). He went into a fund-raising frenzy to reach his goal.

In the early 1990s, Louisville built a new $70 million football stadium and made its first-class training facilities available to all student athletes. In 1998 it refurbished the old football facility to accommodate baseball, women's field hockey, rowing, and men's and women's golf. It spent $13 million building Cardinal Park, which houses a new softball stadium, a track and field stadium, and a soccer field for both men and women. Jurich is currently raising money for a new $18 million swimming facility that he expects to complete in 2002.

The price tag for such efforts is not small: Louisville's sports program costs about $25 million annually. (Since 1983, it has paid for itself through gate receipts, TV contracts, and fund-raising.) But such efforts paid off in terms of proportionality. By fall 1999, Louisville had increased its women's sports participation to 45 percent; there are now a total of 200 female and 245 male athletes. It expects to achieve parity within three years.

Washington State University took a different, though equally successful, route to proportionality. In the early 1990s, the state legislature passed a bill providing tuition waivers for female athletes, which allowed its state-supported colleges and universities to beef up their squads for less direct money. "Washington State is at parity, and the University of Washington is close," says the Independent Women's Forum's Schuld, who points out that this option shifts costs to taxpayers and is unavailable for private schools.

Proportionality can be achieved, as Louisville and Washington State demonstrate. But they are the exception: Most schools can't fund expansions through massive fund-raising campaigns or use state-granted tuition waivers. For the great majority of schools, being safe from a Title IX investigation or private lawsuit means cutting men's programs.

Swimming Upstream

While no one denies that many men's programs have been cut in the pursuit of gender parity, there's disagreement about the overall numbers. On the high end, Leo Kocher, the University of Chicago's wrestling coach, says there have been massive cuts. Analyzing one set of NCAA numbers (the group is notoriously slow to release easy-to-use data related to Title IX issues), Kocher claims that between 1992 and 1997 more than 200 men's teams were cut, a loss of more than 20,000 men's roster spots. Only 5,800 women's spots were added, for a male-pain-to-female-gain ratio of 3.4 to 1. Donna Lopiano disputes Kocher's tally. She points to other NCAA data which show that total men's sports participation in the NCAA has actually increased by more than 13,000 in recent years. The problem with this is that new schools were added to the NCAA over the period, so overall numbers could go up even if many schools were cutting men's teams.

The General Accounting Office took a crack at the issue in 1999. In an attempt to hold the pool of schools constant, it found that from the 1985-86 academic year to the 1996-97 academic year 21,000 male athletic spots disappeared, a 12 percent drop overall. On the female side, 14,500 spots appeared, for a jump of 16 percent.

Regardless of the exact numbers, it's clear that men's programs get dropped on a regular basis. This is especially true for teams that generate little revenue and small crowds. In 1999, for instance, Miami University of Ohio announced it was cutting its wrestling, men's soccer, and men's tennis teams to comply with Title IX. That same year the University of New Mexico shut down wrestling, men's gymnastics, and men's swimming. Brigham Young University axed wrestling and men's gymnastics. In 2000 the University of Miami announced plans to cut its award-winning men's swimming and diving programs as well as men's crew. Wrestling, track, cross-country, swimming, and tennis have been hit particularly hard, each losing more than 20 programs in the past seven years . With the possible exception of basketball, every men's sport is vulnerable.

Even programs that can fund themselves through alumni donations aren't safe. Winning traditions similarly count for little. In 1994 UCLA cut men's swimming and gymnastics, programs that consistently produced Olympic medalists. In exchange, it added women's soccer and water polo.

"I think it's great that the women have those two sports," says former UCLA swimming coach Ron Ballatore. "It's too bad they had to drop two great men's sports. It's a terrible blow. Here's a place that has had swimming since the 1920s. It was one of the top programs in the country. It would be like Notre Dame or Nebraska cutting its football team." In the 16 years Ballatore coached UCLA, the school produced 26 NCAA champions and 10 Olympic gold medalists. It won the NCAA championship in 1982 and finished out of the top five just a handful of times. The only season it finished out of the top 10 was its last, lame-duck season.

Ballatore's swimmers fought hard to save the program. With the exception of one swimmer, his entire team elected to swim the 1994 season and work to save the team instead of transferring. "The day it happened, Coach Ballatore called me and gave me the choice of transferring right there or coming back for another year and trying to fight," recalls backstroker Michael Andrews. "I decided to stay and fight."

The swimmers raised money from alumni. They filed a lawsuit. In the end, though, nothing helped. "It didn't matter about success or the fact that your program was good," says Ballatore, who went on to coach at Brown and then the University of Florida, where he is currently an administrator. "It boiled down to money and Title IX. But money really wasn't an issue. We had raised enough money. We had an alumnus who was going to give us a bunch of money."

UCLA's gymnasts were cut loose as well, although they stayed on to train at the school's facility. Peter Vidmar, a UCLA alumnus who won two gold medals and a silver in the 1984 Olympics, says the school's chancellor told him it was due to Title IX. Jim Foody, who had hoped to make the 2000 Olympic team, is blunt. "In 1984 we had half the men's Olympic team," he told The Daily Bruin. "In 1992 we had the No. 1 and No. 2 ranked guys….For them to drop that team after what they did for the school, it's definitely shitty."

Even these cuts didn't protect UCLA from charges of discrimination. In December 1998 CAL-NOW filed a Title IX complaint with the federal Office for Civil Rights, which is still under investigation. Betsy Stephenson, associate athletic director and senior women's administrator, told The Daily Bruin, "I would hope that we wouldn't have gotten this complaint because I don't believe women athletes are being mistreated, but we can't control complaints from coming." Says Ballatore, "UCLA got rid of us, but they are still faced with the same problem."

Title IX vs. Quotas

The tragedy of Title IX is that virtually nobody is pleased with its current results. The day after Providence announced it was killing its baseball team, the college gym filled up with angry students trying to make sense of what had happened. The women's soccer team threatened to boycott their game that day in solidarity with their fellow athletes. The girl's volleyball team warmed up in the baseball team's jerseys. Alexa Ricardo, a senior soccer player recalls that nobody agreed with axing baseball and nobody thought it was necessary. Swimmer Michelle Hackmer told The New York Times: "When the announcement was made about eliminating baseball, the women athletes were as mad about it as anyone else ….Sure we want women athletes to be treated fairly, but at this expense? I don't think this is what Title IX was supposed to be about."

Hackmer is right. Without policy changes, Title IX is likely to keep killing men's teams. The Independent Women's Forum and other critics hope that the Bush administration will return to the original intention of the provision. Since the problem is with the bureaucratic regulations and enforcement policies, not the statute itself, they are optimistic about the prospects for change. "I think [Bush] will have a huge effect," enthuses the IWF's Schuld, who notes that a clause concerning Title IX made it into the 2000 Republican platform. "This whole issue can be solved in 12 months by rewriting policy. It was created by policy, it can be undone by policy."

That's a rosy scenario. While the Bush administration may reinterpret Title IX, it will face staunch opposition from the industry that has grown up around the college sports issue. There's no reason to believe that groups invested in Title IX lawsuits will simply admit defeat and leave the legal playing field. Consider Deborah Brake, an attorney with the National Women's Law Center. Brake believes that the only problem with Title IX is that it hasn't been enforced comprehensively enough. She once told a reporter she'd like "to bring immediate law suits against as many universities as possible to force them to comply with the law." In June 1997 Brake's group filed 25 complaints with the Office for Civil Rights to celebrate the 25th anniversary of Title IX's passage and hasn't slowed down since.

In the meantime, Stephen Neal, the wrestler from California State University at Bakersfield, continues his own legal grudge match against Title IX. The law, he says, shouldn't have to hurt men to help women. In fact, he thinks cutting men's teams simply to get to proportional numbers—to meet a quota—is expressly forbidden by Title IX, which is about ending real, not just statistical, discrimination.

Neal is attempting a bit of legal jujitsu: He's using the text of Title IX to argue against the CAL-NOW consent decree. In February 1999 U.S. District Court Judge Robert E. Coyle agreed with Neal and enjoined CSUB from further cutting the men's wrestling team. But Neal lost round two in December 1999, when a three-judge panel of the U.S. Court of Appeals for the 9th Circuit reversed the injunction. Neal, who sees the larger context of his struggle, will be back in federal court in February, pressing his case.

"We feel we are the last stand for wrestling," says Neal. "We're going to keep fighting."