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Title IX Turns 35

The landmark law faces a happy birthday- and a midlife crisis.
University Business, Mar 2007

At six o'clock on an early winter's night, the 25 members of the men's swimming team at James Madison University (Va.) plow through the school's eight-lane pool. Second-year head coach Chris Feaster patrols the pool deck, monitoring individual times and shouting instructions loud enough to be heard underwater. "Don't glide into your turns! Swim into your walls!" he hollers as one group nears his end of the pool. "This guy here is ranked 19th in the country," Feaster says, pointing to a powerful backstroker. "He should challenge our school record this season."

But what's made more waves than having a nationally ranked competitor or winning nine of the past 15 Colonial Athletic Association championships is this: The swim team will cease to exist next year.

Last September, the school announced elimination of the men's swimming program, as well as six other men's and three women's teams-to be effective July 1 of this year-in a sweeping attempt to meet the mandates of Title IX, the 1972 federal law requiring equal treatment for men's and women's sports in K-12 schools and colleges.

JMU President Linwood Rose notes that his school was not even close to complying with the law, especially as the female student population boomed. "The analogy I've used is that if the speed limit is 65 miles per hour, you might feel comfortable going 70, but we were so far out of compliance that we were going 80," Rose says. Besides men's swimming, the men's cross country, indoor and outdoor track, gymnastics, wrestling, and archery teams are slated for extinction, as are the women's gymnastics, archery, and fencing squads.

Because JMU voluntarily downsized its athletic program from 28 to 18 teams, without the pressures of any legal action, the school has moved from behind the curve to ahead of it, Rose insists-to the consternation of some coaches and students alike. In his small office just off the poolside, Feaster points to the swimming team's trophy collection, and adds that on his short watch, the swimmers' average GPA has risen from under 2.5 to 2.9. "We've done everything right," he says. "If I coached women's swimming, I'd be fine."

Jennifer Chapman, a senior cross-country and track runner, feels the pain of her male counterparts. "The guys work as hard as we do," says Chapman, whose sports will continue to have programs at JMU. "They run 90 miles a week. But we get better scholarships, apparel, and other benefits. We don't want to get things granted to us because we're women."

JMU has become just the latest flashpoint in a continuing Title IX debate-which has extended in the past year to new lawsuits, a demonstration in Washington, D.C., and a controversial ruling by the U.S. Department of Education, all of which ensure that the landmark law's 35th birthday this June will not pass quietly.

No one is arguing with the success stories Title IX has helped create on the playing field and beyond. "I don't think anyone had any idea that this law would have the impact that it's had," says former U.S. senator and Title IX author, Birch Bayh. "This one took off and exploded because it was the right thing to do."

Bayh adds that 150,000 women today participate in college sports, compared to about 30,000 before the law passed, and he says its effects extend well beyond graduation. "There are blessings that come from women being able to play sports and then contribute to society because they got that educational scholarship," he explains. "And 80 percent of women executives point to their sports experience as an influence."

Not that it's been a smooth ride. Christina Wielgus has coached women's basketball at Dartmouth College from 1976 to 1985 and 1994 to the present. "At first, I thought I was doing a tremendous job just getting the team uniforms, and I even drove the van," she recalls. "We were all activists [for women's athletics]. We couldn't have survived without being one."

By 1978, Wielgus' efforts began to pay off. She got her own office, from which she began to pursue talented high school players, and the rest became Dartmouth history. "We turned things around in 1979 with a 6-foot-5-inch recruit," she notes, "and we won often when the men weren't doing the same. So we managed to get more respect. There's nothing like success. In the athletic world, you've just got to win."

Over the past 25 years, Dartmouth's women's basketball players have earned 15 Ivy League titles and qualified for the postseason NCAA tournament six times. "Our team is a huge success story," Wielgus says. "The entire athletic department is a success story in that women's lacrosse, hockey, and soccer have also done well."

The even more accomplished women's athletic program at Notre Dame University (Ind.)-which began admitting women in Title IX's first year-took a similar route, according to Deputy Director of Athletics Missy Conboy, who played basketball there. "The start was very slow here," she says. "It was very old school." In 1980, Notre Dame elevated Conboy's team to the NCAA's Division I and increased its annual budget twentyfold to $250,000.

"We went from no women at the university to having 12 of 13 women's teams advance to postseason play last year. We've had countless academic All-Americans and graduation rates in the top five in the country," explains Conboy, now in her 20th year in Notre Dame's athletic department. April 27 through 29, Notre Dame will honor those accomplishments with a 35th-anniversary celebration dubbed "A Generation of Inspiration."

Title IX compliance has proved more difficult for other institutions, some of which have had to address their problems in the courts rather than on the courts, including a spate of prominent lawsuits during the 1990s. In 1992, softball players cut by Colorado State University to save money prevailed in a court decision that declared economic hardship was not a reason to discriminate.

In 1996, a federal judge ordered Brown to keep and upgrade women's volleyball and gymnastics after officials had eliminated their funding. Brown was further ordered to offer sports opportunities proportional to its male and female enrollment, as guaranteed under Title IX. Another 1996 court ruling found that Louisiana State University's tardy pace of complying with Title IX had violated the civil rights of women athletes through "arrogant ignorance."

Colleges and universities still have a ways to go. A 2005 study of 112 Pennsylvania institutions found that, on average, only 43 percent of their athletes were women even though females comprised 53 percent of the student population. Researchers from the Philadelphia-based Women's Law Project also calculated that during the 2003-2004 school year, men's sports received almost $142 million in funding compared to $88 million for the women.

The latest controversies under Title IX further underscore the changing demographics and economics of colleges today. Last year, Missouri State University in Springfield slashed four men's sports, as well as women's tennis, in order to save between $250,000 and $350,000 a year. The women players responded with a class-action lawsuit, citing the 1992 holding against Colorado State, and obtained a temporary injunction against proceeding with the cuts.

Some institutions have had to address their problems in the courts rather than on the courts.

The school's board of governors had approved those cuts before President Michael Nietzel arrived in July 2005 from the University of Kentucky, where he had served as provost, but he agreed with the strategy. "The athletic budget at Kentucky was between $55 million and $60 million. Here it was $12 million, and I made it clear while I was interviewing that the magnitude of the sports program needed to be looked at." With three different recommendations, Nietzel says he "took one of the more aggressive ones because it maximized savings and minimized the number of people affected."

He later argued successfully in federal court that the 55 percent participation rate of women in athletics achieved under the cuts matched the school's proportion of female students. "I told the judge, 'Here are the numbers, and we're going to hit them. We as an institution reserve the right to manage our budget.' "

Rose says the increase of females from 46 percent to 61 percent of JMU's student population was the driving force in winnowing the school's athletic teams from 28 to 18. That change mirrors-albeit more dramatically-a national shift from women comprising less than 40 percent of college student bodies when Title IX was passed, to 57 percent in 2004, according to a Census Bureau estimate.

Rose insists the move wasn't financially motivated and that it will save only $550,000 from the athletic department's $21 million budget. But he does concede that the reductions allowed for some athletic housecleaning. "In our case, we also had three female participant sports-archery, gymnastics, and fencing-that we felt really weren't sustainable for the future and for which it was really more than just the compliance issue," Rose says.

"If we were to come into compliance with Title IX fully-that is, move beyond just counting participants, and actually look at the distribution of dollars-then we would have been in a position of needing to scholarship the participants in those sports. We didn't feel it was appropriate to make a financial commitment."

That rationale has drawn a rebuke from several groups supporting Title IX, including the National Women's Law Center (NWLC). Jocelyn Samuels, the group's vice president for education and employment, argues that JMU administrators should have left Title IX out of their arguments. "We think they made the wrong choice," Samuels says. "They opted for a leaner and meaner program. There were certainly other options that JMU could have pursued."

In November, 150 protestors-many of them JMU students and including students from the University of Maryland, Howard University (D.C.), and the College of William and Mary (Va.), which had also eliminated teams-protested the cuts in front of the U.S. Department of Education (DOE) building in Washington. The demonstration also brought out larger forces such as the NWLC and the College Sports Council, which advocates more flexibility in Title IX's mandates. "More and more college administrators are finally speaking out about the pressures they are feeling about proportionality," says Jim McCarthy, a spokesman for the College Sports Council. "That's a trend that's important."

Proportionality-matching opportunities and funding to the proportion of enrolled men and women-is one of three options schools can choose to demonstrate their Title IX compliance, and it's the measure on which most schools, including JMU and Missouri State, have relied. But schools can also provide evidence of improving opportunities for the gender lacking them, or they can gauge the percentage of males and females interested in playing sports.

The last option became the center of a firestorm last spring when the DOE's Office of Civil Rights advanced the position that schools could survey students via e-mail. Title IX supporters saw the move as an end-run around the law's intent; e-mails can go to inactive addresses or be overlooked as the recipient scans a crowded inbox.

"I don't think Title IX is vulnerable to a frontal attack, so instead the opponents are trying to back into changes," complains Birch Bayh, who still practices law in Washington and has found himself speaking more frequently in defense of the law. Other Title IX advocates point out that the DOE's e-mail provision only suggested but did not require that any Title IX survey be included in a document that students must return-a preregistration form, for instance-so the likelihood of students responding might further shrink.

There's also an ongoing controversy over how football should fit into the Title IX equation, especially since that sport has grown in importance at many schools, including JMU. Not far from where JMU's swimmers toil, the $10 million glass, steel, and brick Plecker Athletic Performance Center opened two years ago, primarily to house football operations and condition the players.

Inside the lobby a large hanging banner proclaims the school's 2004 NCAA Division I-AA football championship. Just to the right, visible through a large picture window, row after row of state-of-the-art training equipment fill the strength and conditioning room. The football team has grown to 97 students, almost two-thirds of whom have scholarships, the NCAA maximum.

"It's a considerable footprint," Rose says. "One has to value what any individual sport contributes to the mix at an institution. ... We felt it was important to support football because of the recognition it brings with it. It's the sport that brings together more students and provides an occasion for many ancillary activities on weekends that we wouldn't have. It's the sport that brings out more of our alumni and support base together than any other sport here."

"Women don't have a comparable sport," admits senior athlete Jennifer Chapman. "Maybe football needs to be chopped out of the Title IX equation." Adds senior runner Bryan Buckland, "For whatever reason, men's sports have the marketablility that women's sports do not. It's a nasty piece of reality."

Title IX defenders such as Jocelyn Samuels disagree. "Even if football were in fact a money-making sport, there is no economic defense for discrimination," she argues. "And Congress did not intend for there to be an economic defense to Title IX."

If football is the elephant in the room at many colleges, traditional Olympic sports-wrestling, running, and gymnastics among them-have become the endangered species as athletic departments try to fulfill Title IX obligations.

"I'm the first to admit that women were absolutely discriminated against in athletics," says Mick Moyer, executive director of the National Wrestling Coaches Association. "Now there are over 1,000 women's teams in the NCAA but 50,000 more male athletes. We're headed towards the wholesale elimination of men's Olympic sports."

Wrestling has had its back to the mat since 1972, Moyer says. "It was an early target because we typically have a roster of 40 men and no women." This contributed to the disbanding of almost 400 college teams. In 2005, the U.S. Supreme Court refused to hear the organization's case that wrestling was falling prey to a quota system. "The actual way Title IX is written is fine. We're contesting its interpretation," explains Moyer. "We're asking for equal opportunity based on actual interest."

Schools got the option of surveying students about their interest in sports via e-mail. But some saw it as unfair, as e-mails can be overlooked.

Dartmouth's Wielgus observes that, regardless of the law, schools could get more creative about preserving Olympic sports. "Does everything have to be NCAA?" she asks. "I think men's swimming has value, but it could come under the auspices of the U.S. Olympic Committee." Colleges could seek funding for their teams as the elite swimming clubs around the country do. And private funding could offer another alternative, she adds. "Here they dropped men's and women's swimming three years ago, and within a few months those sports got privately endowed."

But Missouri State's Nietzel responds that schools like his don't have that luxury. A number of people offered to come up with money to keep the cut programs, he says. "But to do that, they would have to give me $300,000 a year, adjusted for inflation, or provide an endowment of $7 million."

Hovering over the current debates about Title IX is the larger question of whether the law has matured sufficiently and had enough of an effect to warrant interpreting its provisions less strictly. The Title IX Commission created in 2001 by then Education Secretary Rod Paige to re-examine the law-and which first endorsed e-mail surveys-also considered that a 7 percent variance in measuring proportionality might be acceptable.

College Sports Council spokesman Jim McCarthy says it's not surprising that women athletes are speaking out against Title IX-related cuts affecting their men, and not just at JMU. He says that such complaints date back as long as a decade ago, when the UCLA women's diving team loudly protested the elimination of the celebrated men's team.

JMU runner Chapman, who helped organize a 400-person campus protest and founded the website, agrees that Title IX reforms may have reached the point where they have become counterproductive there. She rues the loss of the men's cross country and track teams, and says she would not even have chosen JMU if there were not a men's team with which to train.

"One has to value what any individual sport contributes. we felt it was important to support football because of the recognition it brings with it." -Linwood Rose, James Madison University

Still, Notre Dame's Conboy says she has been around women's athletics long enough to take a more cautious view. "My hope is that someday the law wouldn't be necessary," she says. "But I'd like to see a few more generations raise daughters and expose them to sports at a young age. Until you have a couple of generations coming through, it's tough to know if the reform sustains itself."

Ron Schachter, a Boston-based freelance writer who covers sports for National Public Radio, went on location in the Washington, D.C., area for this story.

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