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

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

An institution that does not provide substantially proportional participation opportunities for men and women may comply with Title IX by satisfying part two or three of the three part test . . . [and] nothing in the three part test requires an institution to eliminate participation opportunities for men.55

An institution should not be allowed to claim that there is no alternative to cutting men's programs in order to comply with Title IX, when it has failed to even attempt compliance under the other two prongs of the participation requirement, especially when prongs two and three are not particularly onerous. An institution that has 'painted itself into a corner' gradually over a long period of time by failing to address the participation requirement for women, should not be allowed to suddenly claim that the only way it can comply with the participation requirement of Title IX is to cut men's programs due to the poor financial condition of the athletic department. When an institution gets itself into a bind such as Miami University,56 and responds by dropping men's programs, everyone loses; the women are not given the opportunities for participation in sports where there is a proven unmet interest, and the men have opportunities taken away simply because of their sex.

To combat the popular myth that proportionality is required under Title IX, the OCR has continued to convey to institutions that dropping men's opportunities to comply with Title IX is not required.57 The OCR provided a Further Clarification58 in July, 2003, which reemphasized the major point of the 1996 Clarification,59 that there are three separate prongs by which institutions can prove compliance with the participation requirement of Title IX. The Further Clarification also stated that "the elimination of teams is a disfavored practice."60 However, institutions will likely continue to engage in the process of dropping existing men's opportunities to comply with Title IX as long as the OCR and courts view doing so as merely a "disfavored practice," rather than an unlawful practice. Legislation could accomplish this but failing that, interpretive tools are available to OCR and the courts that could give real effect to Title IX's clear wording and purpose.

IV. METHODS BY WHICH TITLE IX, ITS REGULATIONS, AND THE POLICY INTERPRETATION CAN BE IMPROVED

In order to effect the clear wording and purpose of Title IX, Title IX should be enforced in a way that ensures that no person is denied participation on the basis of their sex.61 When a men's team is dropped from an institution's athletic department in order to comply with Title IX, the reviewing court should be presented with the question: were these men denied participation opportunities in their sport on the basis of their sex? If the answer is "yes" there should be a violation of Title IX, and if the answer is "no" there should be no violation of Title IX. In order to get a court to rule on this question, many plaintiffs that have had their sport dropped from an institution's athletic department have brought an equal protection claim against the institution. However, plaintiffs are not winning on their equal protection arguments. Therefore, a new method will be presented by which a reviewing court can analyze whether a plaintiff was denied a participation opportunity on the basis of sex when a team has been dropped from an institution's athletic department.