Title IX Survives, Again

Earlier this week, the federal district court for the District of Columbia dismissed a case brought by the American Sports Council against the U.S. Department of Education, in which ASC tried to stop the Department from applying to high schools Title IX’s three-part test for determining whether schools are providing males and females with equal opportunities to play sports. Of course, the law has always applied to high schools; this was merely the latest attempt to weaken Title IX’s application to sports.

You would think that everyone would be in favor of treating our sons and daughters equally, but ASC and similar groups have long argued that the law hurts males by requiring schools to cut their opportunities in order to provide girls and women with opportunities that they don’t really want, because they are inherently less interested in playing sports. Fortunately, the federal courts of appeals have unanimously rejected such arguments, which are premised on the very stereotypes that Title IX was enacted to combat.

The courts have not had to delve very far into cases like the one brought by ASC, dismissing them instead on a preliminary ground called standing, which is a requirement that the plaintiff demonstrate injury as a result of the challenged action. For example, in the ASC case, the court said that the group could not show that Title IX is the cause of their injuries (which they describe as the reduction of athletic opportunities for boys) since the law does not require schools to reduce opportunities.

In fact, Title IX says nothing about cutting opportunities for anyone. Schools can and do choose, however, to drop or cap teams for financial or other reasons, and Title IX allows them the flexibility to structure their athletic programs as they wish, as long as they do not discriminate on the basis of sex. The law also gives schools three independent avenues for demonstrating that they are providing males and females with equal opportunities to play sports, one of which allows schools to show that they have slowly but surely been adding opportunities for women and girls - - a very lenient test for compliance. A school can also be in compliance if it can demonstrate that its female students are fully satisfied with the athletic opportunities that are offered.

Empirically, data show that men’s participation continues to increase and that women and girls still get the short end of the stick in terms of opportunities to play and resources when they do play. This is true at both the elementary/secondary and college levels and at schools across the country.

Given that playing sports makes girls healthier, helps keep them in school, and makes them less likely to smoke, use drugs, and become pregnant, we need greater enforcement of Title IX, not less.