Originally written by Martha Burk for On The Issues Magazine. 

See all our 2012 Title IX coverage here.

Title IX has been a part of our body of law for 40 years, and it has been contested legally and politically almost continuously since it was enacted. Although it applies to all educational programs receiving federal financial assistance, sports programs have drawn the bulk of the political fire. Opponents say that it is a quota system that pits women’s sports against men’s sports, and that the law is responsible for the elimination of many men’s athletic teams.

Arguments against Title IX are based on two premises that are, in turn, grounded in cultural tradition: 1) Men and boys are the rightful “owners” of sports, and 2) Males are superior to females in athletic ability.

It is interesting to note that arguments against Title IX closely track those against affirmative action, with the built-in assumption that white men own the pool of jobs, and that any portion gained by other groups takes something from its “rightful” owner. This thinking is also the basis of claims that both programs have resulted in “reverse discrimination” against males.

In keeping with the cultural norm that men own sports, political opposition has centered on the notion that it’s a zero-sum game. Any benefit to women comes at a cost to men, objective evidence to the contrary. Men still have statistically higher participation rates in sports than women, and both men’s participation rates and the amount of money spent on men’s sports continues to rise. The number of girls playing high school sports has still not reached the participation rates boys had in 1971, the year before Title IX was passed.

Male Delusions Scapegoat Women’s Athletics

The frequent argument that expanding women’s opportunities leads to the elimination of men’s teams is another red herring. It has been shown that compliance with Title IX is not the primary reason that schools eliminate men’s teams; almost three quarters of schools that add women’s teams do so without eliminating with men’s teams. Sometimes men’s sports are eliminated because schools want to replace them with more popular sports. Some schools have eliminated men’s wrestling, tennis and gymnastics, but soccer, baseball and basketball have been added. Women’s sports have been similarly rearranged. Women’s gymnastics, fencing and field hockey have been cut and replaced many times with track, lacrosse and swimming.

The most likely reason for cutting men’s sports is that expensive men’s teams, such as football and basketball, command a disproportionate share of resources — and Title IX is a convenient scapegoat. Title IX is blamed when smaller sports are sacrificed for football and basketball budgets because it is a more politically palatable argument for school officials who do not want to own up to fiscal reality.

Wrestling is instructional. While it is a fact that wrestling programs are in decline, Title IX is not the culprit. Title IX was not enforced during the years 1984-1988 because the Supreme Court ruled in1984 in Grove City College v. Bell that only the school programs receiving direct funding were bound by Title IX. Even so, wrestling teams were being cut. The rate was actually three times higher than the previous years when Title IX was in effect, causing wrestling teams to decline from 342 to 289. Women didn’t cut men’s wrestling — predominately male athletic directors did – because they didn’t want to make far more painful and unpopular decisions, such as cutting back on football.

The “football first” culture of men owning sports has prompted Title IX opponents to argue that football should be excluded from the calculus altogether because revenue from football funds other athletics. In fact, while the lion’s share of athletic budgets goes to men’s football and basketball, it’s hard to make the case that these programs are money makers. A recent report of the National College Athletic Association (NCAA) stated that only 11 percent of the athletic programs in the Football Bowl Subdivision (the richest) made money. No programs in the Football Championship Subdivision (formerly Division I AA) operated in the black; some deficits run into the millions and losses continue to grow each year.

If the fiscal viability yardstick is subjected to honest scrutiny, the case can be made that it is fiscally irresponsible to retain football or any other sport. Indeed, if the argument that sports programs must pay for themselves is a valid one, what is to stop opponents of other educational programs, such as music and art, or for that matter, science, from applying the fiscal viability standard?

Another claim, this one based on the premise that males are better athletes, is that girls are not as interested in sports as boys are. There is no evidence to back this claim. In fact, from the ages of six to nine, boys and girls are equally interested in sports. But participation opportunities for girls begin to decline sharply after age nine. Rather than lack of interest, it is likely that a lack of accessibility contributes to the drop-off of female participation because boys have approximately twice as many opportunities to join a team. Greater opportunity goes hand-in-hand with better training facilities and practice fields, better game and practice times, and more coaching and support staff. This lack of encouragement through limiting accessibility results in a probability about six times greater for girls dropping out of sports than boys by the age of 14. That, in turn, translates to fewer female high school and college athletes.

All Students Entitled to Locker Room Rights

The most politically charged rhetoric used by opponents of Title IX asserts that it is a “quota system” for women’s sports. Title IX is, indeed, not a quota system; only one of the three possible methods of compliance involves proportionality: stating that opportunities and participation of male and female students at the institution are to be “substantially proportionate” to their respective full-time undergraduate enrollments. The majority of schools cannot pass this test, and, in fact, don’t even try to use it to demonstrate compliance with Title IX. Besides, one could just as easily make the argument that Title IX was enacted to overcome a quota system that afforded males more opportunities than could be justified by their school participation rates overall (for example, males in 1972 were 51.5 percent of the student population and were granted 84.4 percent of athletic opportunities).

Perhaps the most disingenuous claim by opponents is that women are no longer subject to the discrimination they endured before Title IX was enacted so Title IX is no longer needed. Despite the gains made under Title IX, women’s sports are still lagging behind men’s sports, and 40 years after its passage, around 80 percent of colleges and universities are still not in compliance with the law. The only way to bring these schools into compliance and achieve parity for women is for stronger enforcement — and resistance to efforts to weaken Title IX based on rhetoric grounded in the twin premises of men’s ownership and superior ability. While loss of federal funding is theoretically the outcome for schools that don’t comply, in reality, this simply does not happen. If loss of funds were a true possibility and not just an unenforced threat, more schools would step up their efforts at compliance.

Even though Title IX has been under attack since its inception, political and legal realities may be changing the debate. We have now had a generation of female athletes spawned by Title IX, which, in turn, made basketball’s WNBA, the Women’s Professional Volleyball League and Women’s United Soccer Association (2000-2003) possible.

Parents do not want to lose these opportunities for their daughters. They are increasingly aware of the discrepancies between resources for boys’ and girls’ sports and increasingly aware that these discrepancies are illegal. This is made possible through the passage of state level laws such as the New Mexico School Athletics Equity Act, mandating disclosure of resources allocated to sports teams by gender, including the number of coaches and what they are paid, physical facilities, and equipment and transportation outlays.

For Title IX to truly fulfill its promise, we must not only strengthen enforcement and guard against weakening amendments and rule changes, but we must also change the paradigm of sports participation. Instead of thinking of the pool of athletic opportunities as belonging to males, who must “give up” a valuable commodity that they own to accommodate outsiders (females), we must think of the pool as belonging to all students, who are equally entitled to the benefits of participation. Viewed in this way, males have traditionally commanded a disproportionate share, and Title IX is one way to guarantee that in expanding overall opportunities, women’s share grows until it reaches parity.

Martha Burk is Director of the Corporate Accountability Project for the National Council of Women’s Organizations. She is also Money Editor for Ms. Magazine and producer/host of the public radio show Equal Time. Her new book is Your Voice, Your Vote: The Savvy Woman’s Guide to Power, Politics, and the Change We Need.