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February 23 2011

Title IX in the News

Allison Kasic

A few recent articles on Title IX have caught my eye. Here's a rundown:

-Following up on my recent Title IX in high schools article, here's an example of another area where government micromanaging via Title IX is creeping into high schools -- booster club funds.

-Last week, the NYT editorialized about the cuts (and ensuing reinstatement) of a few athletic teams at Cal (IWF coverage here and here if you need background info). The editorial claims that the school's solution (to reinstate 3 of the 5 cut teams) would likely have been worse without Title IX. The logic is the following: after the original cuts, the school wasn't proportional and would likely have resorted to roster management (cutting roster spots rather than eliminating entire teams) to move toward proportionality. Saving the two women's teams that were originally cut gave the school more leeway in making the argument that they are meeting the interests and abilities of the students on campus and are therefore in compliance with the law.

So, what's wrong with that argument? For starters, the situation at Cal is hardly a stable equilibrium. Proportionality is the only compliance measure to have held up in courts over the years. So Cal is theoretically one future lawsuit or government complaint away from starting this drama all over again (such is the unfortunate litigious modern reality of Title IX). But moreover, the NYT's view of the situation at Cal is extremely shortsighted. Would Cal have made cuts in the first place without Title IX? Maybe (they had budget concerns). Would have they made the same cuts without Title IX? It's impossible to tell for sure, but there is more than a sporting chance that the answer is 'no.' Certainly there is nothing in Title IX that points to specifics -- i.e. 'cut wrestling but not soccer.' But it does constrain the choice set that a school faces when making program decisions. If schools want to cut programs, men's teams are going to bear the brunt of those cuts. Cal was no different. But since Cal wasn't proportional after the cuts, either one of the cut women's teams could have easily sued the school with a reasonable expectation that they would win the case. So, no surprise -- the school reinstated the women's sports along with men's rugby (which was able to raise a lot of money). Is that a victory for the student athletes on those teams? Of course. But is that really a victory for Title IX? I don't think so. Barring Title IX's demands, Cal would have been free to have whatever mix of athletics programs that they felt best served their school. Title IX constrained that decision and it's impossible to tell whether the results are better or worse than they would have been absent those constraints.

-Finally, a bit of good news. Last month I reported about the proportionality-induced cuts at the University of Delaware. Turns out that the affected athletes and their supporters aren't going down without a fight. Over the weekend, they staged a protest on campus. Details here. It will be an uphill battle to save their teams, but it's great to see such a spirited response in the face of adversity.



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