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Delaware Track & Field Case Provides Golden Opportunity for Title IX Compliance Reform

(Note: This blog posting has been cross-posted at Technorati, and can also be found in its entirety there.)

In January, the University of Delaware issued a press release that has unfortunately, been all too common at smaller schools all over the country. They announced they were cutting a non-revenue men's athletics program - in this case, men's cross country and track and field - due to fiscal and Title IX compliance concerns.

What was different this time was that the co-captain of the hundred year-old team, Corey Wall, decided to file a complaint with the federal Office for Civil Rights. It cited reverse gender discrimination, and suggested that the enforcement of Title IX was, in reality, taking them away from men "against the spirit of Title IX."

Truer words have never been spoken. (more)

The wording of the actual Title IX law, which states "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," has never been the problem.

It has been the narrow definition of that law of how to be in compliance that has been so fatal to so many non-revenue and low-revenue athletics programs over the last two decades.

In theory, a school can be "in Title IX compliance" using one of three tests. But in practice, only one test - proportionality - is a "safe harbor" against an investigation. In a broad sense, it means if 57% of your student body is female, at least 52% of your "athletics opportunities" need to go to women.

What this test has done, in effect, is have schools required to play a numbers game in order to stay in compliance, with the percentage acting as a quota for women's participation.

For large schools in conferences with huge TV contracts, meeting the quotas generally isn't an issue. Smaller schools like Delaware, though - who spends $31 million on its entire athletic department - generally have to struggle to make the numbers work.

While the target of the proportionality test tends to be giant athletics programs like, say, Texas, it's small schools like Delaware that have to bear the brunt of the costs of compliance. It's meeting the proportionality test that is causing Delaware to drop its historic men's track program, not Title IX.

Such actions show that the proportionality test for Title IX is broken. It has had the effect of decimating non-revenue sports like wrestling and has been the cause of dozens of small-school football teams to cease competition. The Delaware men's track team is just one in a long line of men's programs that died as a result.

But by getting back to the spirit of Title IX, perhaps this trend can finally be reversed.

Delaware, who plays Football Championship Subdivision football (or FCS for short), provides a golden opportunity for the OCR to re-evaluate its position on smaller athletics departments.

Why not just simply exempt FCS football teams from Title IX participation and compliance numbers?

While Delaware's football program is tiny in comparison to bigger schools - their yearly spending is less than a fifth of, say, Auburn's - its effect on participation numbers are huge. Schools need to report all their participants to the OCR every year, whether they're scholarship athletes or not.

Even though Delaware only offers 63 scholarships, spread across many players, when you include the participants who are walk-ons (who "pay to play"), the number can exceed 100. Eliminating these 100 players from participation would instantly put Delaware in compliance - and allow them to field their men's track teams.

Scholarship money would still be subject to Title IX compliance. The 63 scholarships in football would continue to need to be matched with 63 women's scholarships. Spending would not change.

And can one truly argue seriously that Delaware does not provide for its female athletes? The Blue Hens sponsor twelve women's sports, including womens-only sports volleyball, field hockey, and crew. They spend $4 million a year on women's scholarships alone. Certainly they provide a multitude of women's sports, and are not a rogue athletics program that is denying opportunities for its female athletes.

The best way the OCR could accommodate Mr. Wall's complaint is to exempt FCS football programs from Title IX participation numbers. It would not only allow Delaware's 100 year old men's track and field program to continue to operate, it would also mean the preservation of literally hundreds of non-revenue and low-revenue men's sports such as wrestling, rugby, and small college football.

Comments

While your diagnosis of the problem is spot on when it comes to quotas and Title IX compliance, we think that the treatment you've recommended is off the mark.

The problem with Title IX is not football, it's the use of gender quotas to enforce the law. If you remove the use of quotas from the equation, while also reinstating the option of using interest surveys, schools will have all the tools they need to fully comply with the law when it comes to athletic participation.

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