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

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

As for the first part of prong two, the OCR provided factors in the 1996 Clarification that are used to make the determination of whether there has been a "history of program expansion . . . [for women]." The Clarification enumerates the following as the relevant factors:

* an institution's record of adding intercollegiate teams, or upgrading teams to intercollegiate status, for the underrepresented sex;

* an institution's record of increasing the numbers of participants in intercollegiate athletics who are members of the underrepresented sex; and

* an institution's affirmative responses to requests by students or others for addition or elevation of sports.41

None of the factors in the OCR's Clarification suggest that an institution, in order to satisfy the first part of prong two, must have a long, rich history of program expansion.42 The Clarification only seems to require there be at least some proven history of the institution adding women's participation opportunities aimed at developing the interests and abilities of women. Unless an institution has failed to even attempt to comply with the participation aspect of Title IX since Title IX's enactment in 1972, most institutions would be able to prove there has been a history of program expansion. This conclusion is widely supported by the fact that between 1991-92 and 1999-2000, the average number of female participants in intercollegiate athletics per institution increased by 46%.43 Unless an institution has been wildly unresponsive to the effect of Title IX, nearly every institution will be able to put forward some evidence of a history of program expansion for women. The institution must next prove the second part of prong two: that it has a continuing practice of program expansion. To satisfy this second part of prong two, the Clarification offers the following factors:

* an institution's current implementation of a nondiscriminatory policy or procedure for requesting the addition of sports (including the elevation of club or intramural teams) and the effective communication of the policy or procedure to students; and

* an institution's current implementation of a plan of program expansion that is responsive to developing interests and abilities.44

The OCR's Clarification does not provide any sort of timeline by which an institution must actually follow through with the implementation plan it has in place to expand participation opportunities for women; because of this and the fact that most institutions will easily prove a history of program expansion for women, an institution seeking compliance under prong two instead of prong one will often find compliance much easier. For example, when an institution is in a situation similar to the University of Wisconsin and is faced with the choice of either dropping forty-eight men's participation opportunities or adding fifty-nine women's participation opportunities to comply under prong one, the institution could avoid the problem and fully comply under prong two by showing it has a history and continuing practice of program expansion for women. The institution would probably only need to develop and seek to implement a plan to add one women's sport in response to the interests and abilities of the women at the institution. Thus, instead of needing to add fifty-nine participation opportunities for women to comply with prong one, the institution could comply with prong two by simply adding one sport, which could require as few as five total participation opportunities.45