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The Patriot League's Title IX "Problem"

Last week, I wrote a piece detailing a series of articles about Title IX by Katie Thomas of the New York Times.

It is a series of pieces with "revelations" - some new, some old - that Division I schools play games in order to satisfy the proportionality prong of Title IX compliance.

The debate about over Title IX enforcement rages on, and will continue to do so as long as activists on both sides of the issue continue to feel passionately about it. But the debate on Title IX compliance - if you look hard enough - is also at the core of the Patriot League presidents' vote on football scholarships, too. (more)

Normally, a letter to the editor from, of all things, the captain of Lafayette's fencing team shouldn't really be a big blip on the radar screen of the football scholarship debate in the Patriot League.

In the letter, the captain was replying to Ms. Thomas' article in the New York Times where one of the "revelations" was that Cornell's fencing team counted male fencers as "women" since they're not competing in NCAA championships, but spar with female fencers that are.

To the Sports Editor:

Re “College Teams, Relying on Deception, Undermine Gender Equity,” April 26: The varsity fencing team at my small Division I college has found a simple, overlooked way to promote gender equity that will alleviate the deception. Our college could not finance separate squads, so we established a co-ed team.

Our female fencers are considered men by the N.C.A.A. (no title IX credits there, I guess), and they can qualify to compete at the regional men’s championships, which two of our women did this season.

Although this approach may not lead us to the national championship, it provides an atmosphere that allows all student-athletes to compete on a gender-equal basis in the sport they love.

I zipped over to the EADA reports on athletic participation and saw that, yes, Lafayette indeed has 13 men and 8 women on their co-ed fencing team.

Now, I'm all for Lafayette women and men to enjoy fencing competition. That Lafayette is sponsoring a fencing team is a good thing - male, female, or co-ed. Kids who are good at what they do should have the opportunity to compete in NCAA competitions.

But isn't the fact that they are a co-ed team mean that they are making it more difficult to comply with Title IX? Technically, yes.

Every year, Lafayette and every other Division I institution has to report their male and female participation numbers to the Department of Education. Those number count eight women who are in the same category as football players, and could be used to demonstrate that Lafayette is not giving athletic opportunities to women.

Looking more closely at the EADA report, no members of Lafayette's fencing team receive any athletic aid or scholarship money. Co-ed fencing is the very definition of a non-revenue sport - it costs money to field the team, and the school will never recoup its "investment" if you look at it in terms of dollars and cents.

So what does it cost to field this co-ed fencing team? $6,640 for the entire season - which does happen to be split among men's and women's expenditures in the EADA report.

(Isn't that walking around-money for individual football players at Auburn? But, I digress.)

Counting a co-ed team all as men doesn't seem like a big deal. Unfortunately, it is a big deal, because of what gender counting has become.

"In 1996, the Department of Education further bolstered the proportionality zealots by requiring colleges to count every name on a team's roster -- scholarship and nonscholarship athletes, starters and nonstarters," John Irving, a hall-of-fame wrestler, wrote in the New York Times back in 2003. "It is this ruling that has prompted a lawsuit by the National Wrestling Coaches Association, the Committee to Save Bucknell Wrestling, the Marquette Wrestling Club, the Yale Wrestling Association, and the National Coalition for Athletics Equity, all of whom argue that the 1996 rules exceed the Department of Education's statutory authority ''by effectively mandating the very discrimination that Title IX prohibits.''"

This matters because even a few athletes one way or another can be an invitation to being perceived as "out of compliance", and come to the attention of the DOE and OCR. Too often, wrestling - a non-revenue men's only sport - has been the victim of this numbers game. Losing twenty or thirty participants - and note, I didn't say scholarship athletes, I said participants - is an easy way to meet the athlete-counting requirements to head off a potential lawsuit.

That Lafayette's co-ed fencing team needs to count against Title IX participation is ludicrous in the first place. I have no idea if those eight women counted as men might trigger problems with the DOE and OCR. But the way the gender counting rules are enforced, they very well might.


Unfortunately, Title IX counting is also all about scholarship money, too - and that's where the dreaded football scholarship debate in the Patriot League comes into play.

For those of you just tuning in: in practice, the only way that is widely accepted by the DOE and Office of Civil Rights to adhere to the principle of Title IX is meeting the "proportionality" test - which means, broadly, if 57% of your student body is female, at least 52% of your "athletics opportunities" need to go to women.

(In addition, while in theory there are other ways to adhere to compliance, the only way to have "safe harbor" is to meet this proportionality test. This comes from a 1996 clarification letter from the Department of Education saying so).

Almost two years ago I wrote a blog posting concerning "The Complicated Puzzle of Title IX and the Patriot League". In that posting I quote an article from which talked about Fordham's decision to start offering merit-based aid in football:

The decision to award athletics aid to football players at Fordham had little to do with economics. Unlike most institutions in the Patriot League, Fordham counted need-based aid given to football players toward its gender-equity limits under Title IX. The school already offered a comparable number of athletics scholarships to women as to men.

At most Patriot League schools, however, the need-based aid awarded to football players is not counted toward gender-equity limits. Therefore, if other institutions in the conference were to move toward awarding athletics aid in football, they also would need to award a comparable amount of athletics aid to female student-athletes to meet generally accepted Title IX requirements. For example, if a school were to offer 60 scholarships in football, it would need to offer 60 scholarships to female student-athletes as well.

The proportionality test, not only counted in participation, happens to also be counted in terms of athletics spending. And it's because the Department of Education's regulations - and discretion - dictate this.

"Unequal aggregate expenditures for members of each sex or unequal expenditures for male and female teams if a recipient operates or sponsors separate teams will not constitute noncompliance with this section, but the Assistant Secretary [of Education for Civil Rights] may consider the failure to provide necessary funds for teams for one sex in assessing equality of opportunity for members of each sex," is a part of the DOE's regulations in determining "equal treatment" of men and women in terms of athletics.

In theory, the Assistant Secretary doesn't need to consider this "failure" in terms of assessing equal opportunity. In practice, however, it's everything. As previously mentioned, only proportionality meets the "safe harbor" requirements, and the other two ways to comply are fiercely battled by Title IX advocacy groups, meaning proporionality isn't just a way, it's the only way, really.  (An effort in 2003 to allow email surveys to determine female interest in athletics was overwhelmingly attacked by legislators and advocates at Title IX advocacy groups.)

In football, the Patriot League has had "equivalency" scholarships for years. If you are a recruited football player, you go through the financial aid office and you are told this is the amount we think your family is able to pay.  Even though they go through the same experience that other non-athletes do through the financial aid office, their aid is accounted as "scholarship money" that is subject to Title IX limits.

But switching these "equivalency" scholarships to the same scholarships that, say, Delaware offers poses potential problems for Patriot League institutions. As I put it two years ago:

For Fordham, the economic decision to "go scholarship" in football effectively cost them nothing since they did not account for gender equity in this way. They were already spending athletics money in accordance with Title IX, and the great majority (if not all) of their football spending was on qualifying need-based aid. So from their perspective, why go through the financial aid office at all? It was just a matter of taking an equal amount of money out of the "need-based" pot and putting it in the "scholarship" pot - no contortions necessary.

But if the rest of the Patriot League offers scholarships, this math changes for some schools that haven't already offered full scholarships in other sports. First of all, the amount needed in both male and female athletic pots grows immensely right off the bat - student-athletes who used to have a only part of a their scholarship "count" (work-study and need-based aid don't count in their accounting) are now having the entire amount count towards scholarship spending. Overall expenses for both sexes could skyrocket, especially at schools where nearly all the athletes are need-based aid in one form or another.

In the Patriot League, when aid is considered need-based, in the past it has been considered enough for Title IX compliance to simply put money aside in a pot for "money on women's athletics" and not even spend it. The idea is that the schools set aside (say) a certain amount for men's athletic aid, and a certain amount for women's athletic aid. If the men find themselves more needy than the women (which in general they do), then more ends up getting spent on the men. As one high-placed Patriot League official told me, "as long as the money is available, it's OK", and multiple Patriot League schools do this for Title IX compliance today.

So a seemingly simple move - from need-based aid to FCS-style scholarships - has deep Title IX accounting changes for many Patriot League schools. It could represent a large bump in expenses - on both the men's and women's sides.

While I don't know the specific numbers, it's fair to speculate that conforming to the proportionality prong could be extremely costly. Tuitions to private institutions like Georgetown and Lehigh are already among the costliest in the nation, and thus scholarship money would take up a higher proportion of the athletics department expenses.

Taken without Title IX proportionality in mind, it still might make sense to expand this scholarship money, since football teams with 63 scholarships get increased opportunities to play FBS schools for some guarantee money. But with proportionality mandating Title IX "offsets" to that expenditure - as well as getting existing institutions in compliance - the costs are much higher.

It's not like Patriot League schools themselves are complaining about Title IX, or groaning about the fact that they are sponsoring women's sports. The Patriot League and its member institutions sponsor twelve women's sports and promote women's athletics extremely well.  And in my world, Lehigh's women's basketball and softball teams have been very well promoted by the school - and myself, I hope, as well.

Furthermore, in 2006 Lehigh and Bucknell were cited in a study by the Women's Law Project, a Title IX advocacy group, ranking in the top five for women's athletic opportunities.

Based on this glowing report and yearly reports of great academic progress and graduation reports for Patriot League athletes - especially women - you'd think that the battle for gender equity in the Patriot League was won long ago.  More women at Patriot League schools are playing on TV, competing in NCAA championships, and graduating.  The battle is over; the Patriot League won.

So why not simply exempt the Patriot League from the proportionality test in football?

Let's say for a minute that it was waived, and the league started offering scholarships in football. Would football become an arms race? Would their FCS football conference all of a sudden think about moving to FBS and playing Alabama on a regular basis?

Of course not; the Patriot League consists of small, private schools playing cost-containment football. They simply wish to compete on a level playing field for the top academic football recruits, while playing Rutgers in Piscataway every once in a while.

No private school has ever jumped to play I-A or FBS football, ever - and none of the folks who want football scholarships for the Patriot League wish for that either. They want to compete with Delaware, not Notre Dame.  It's never been about becoming the next Auburn - it's about attracting the best students who happen to be athletes.

Without a proportionality test, football scholarships would not negatively affect women's athletics at these schools in any way - it would simply allow a new, hitherto unavailable type of athlete that is academically qualified to play Patriot League football.  Athletes would no longer have to choose between a free education at Cornell or having to pay their way at Bucknell, thanks to their ability to pay.

It's abundantly clear that waiving proportionality wouldn't ruin women's sports for the Patriot League.  But let's take this one tiny step further.

If the proportionality test is preventing football scholarships from being implemented at Patriot League schools, and scholarships would allow more qualified men to attend those schools, isn't that clear proof that the Title IX proportionality test is broken and is actively denying athletics access to qualified men?

Could a case be made that Title IX requirements are preventing access to large numbers of Patriot League-qualified men from attending school at places like Lehigh?  Players that qualify academically, but are not allowed access to scholarship money?


When you look at the Patriot League scholarship issue long enough, it isn't about individual presidents, votes, or feelings about athletics. It seems to be all about Title IX compliance, and how the existing compliance test of proportionality is abjectly unworkable for small, private schools that can't afford to scholarship the entire student body. Nobody will say it - not least the presidents themselves. But that's really what this seems to be about.

It's very telling that Title IX is at the heart of the Patriot League football scholarship debate - and yet nobody dares make the claim that adding football scholarships at Patriot League schools are short-shrifting women athletes. Now, or ever. And, when you get down to it, isn't that the problem?


Douglas said…
In my mind, Title IX was always the main reason the PL couldn't go full scholarship... If these women advocates would care about the damage that's been done in their cause to men's minor sports like wrestling, they would have long ago figured out a way to let these minor sports stay alive.. but no....

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