Title IX: The Technical Knockout For Men's Non-Revenue Sports

Journal of Law and Education, Apr 2004 by Bentley, Eric

A. Prong One: The Proportionality Prong

If an institution chooses to prove compliance under the proportionality prong, the institution must prove that its intercollegiate participation opportunities are substantially proportional to the gender ratios of their respective enrollments.31 For example, if the enrollment at an institution is comprised of 55% female students and 45% male students, the institution's athletic department would need to be comprised of 55% female athletic participants and 45% male athletic participants to be in perfect proportionality.32 Perfect proportionality, however, is not required between the student enrollment and the athletic participation opportunities. Instead, what is required is substantial proportionality.33 The OCR makes the determination as to what qualifies as being substantially proportional on a case-by-case basis.34 The OCR has never come forward with an exact number or range that qualifies as being substantially proportional.

Many institutions face a dilemma when seeking compliance under the proportionality prong: drop existing men's opportunities or add women's opportunities to its athletic department. For example, in the Fall of 2000, the University of Wisconsin sought compliance with Title IX under the proportionality prong.35 Enrollment at the University of Wisconsin was 53% female and 47% male. The athletic participation opportunity ratio was 49.8% female (425 athletes) to 50.2% male (429 athletes).36 The OCR sent a letter to the University of Wisconsin finding a lack of substantial proportionality because 53% of the university was female, but only 49.8% of the athletic participation opportunities were for females. This difference of 3.2% was insufficiently 'proportional.'37 Institutions that rely only on the proportionality prong create a serious problem for themselves when faced with the same situation as the University of Wisconsin. The institution can either add fifty-nine athletic participation opportunities for females, thereby increasing the female participation rate to 53% (matching female enrollment), or it can eliminate forty-eight athletic participation opportunities for males, thereby decreasing the male participation rate to 47% (matching male enrollment). If an athletic department is operating with a substantial deficit, and the athletic director must decide whether to add or drop opportunities, one might feel dropping male participation opportunities is the wisest choice, both financially and legally. But this decision is not forced by Title IX. It is the result of a complete failure by the athletic director to recognize an institution can seek compliance under prong two, the history and continuing practice prong, or prong three, the interests have been fully accommodated prong.

B. Prong Two: The History and Continuing Practice Prong

If an institution was faced with the need to either add fifty-nine female participation opportunities or drop forty-eight male participation opportunities in order to comply with the participation requirement, the institution could rightfully conclude that this is a harsh result, refuse to demonstrate compliance with prong one, and instead demonstrate compliance with prong two.38 If an institution seeks to demonstrate compliance with prong two, the institution must "show a history and continuing practice of program expansion which is demonstrably responsive to the developing interests and abilities of [women]."39 Thus, prong two of the participation requirement of Title IX can be broken down into two separate parts: 1) there must be a history "of program expansion which [has been] demonstrably responsive to the developing interests and abilities of [women;]" and 2) there must be a "continuing practice of program expansion which is demonstrably responsive to the developing interests and abilities of [women]."40