One other main issue that is wrapped in Title IX is the issue of contact sports. The general rule is that Title IX does not require a school to allow the opposite sex to participate in a contact sport unless there are enough members of that sex to field their own team. However, like most rules, there are exceptions. Some courts have allowed girls to play on contact sports teams with boys. “Rationale for the rules and regulations prohibiting same sex teams have included the following: the physical, biological and psychological differences between males and females, promotion of the safety of the players; promote athletic opportunities for women and/or preserve emergent female sports programs from domination by male athletes, or to maintain the competitiveness within the women’s programs.” [16] The courts also make it abundantly clear that the classification of a sport as a contact sport must be reasonable.
The courts have considered many sports when considering the “contact sport” issue. The first sport to look at is football. Football has traditionally been regarded as a contact sport. Even though some courts have allowed girls to play on all boys football teams, this is the exception, not the rule. However, “Title IX’s regulations leave each school free to choose whether co-educational participation in a contact sport will be permitted,” unless there is a “reason for such an exclusion, as for example where peculiar safety and equipment requirements demand it, . . . or perhaps where excluding males is necessary to redress past inequality and to foster female participation” [16]
The next sport to look at is Basketball. Basketball has also traditionally been regarded as a contact sport, and it falls victim to the same regulations and rules as football. However, unlike football, many schools offer a girls’ team. Whether or not a girl can go out for the boys’ team when a girls’ teams is provided is up to the school district. Courts have, however, prevented a female from forcing the issue and disallowed her, pursuant to the schools ruling, from playing on the boy’s team when a girls team was provided for her to play on. [19]
Baseball is another popularly litigated sport. Baseball is one of the sports the jurisdictions are split over. Some jurisdictions make the sport a contact sport, and some do not. Many schools offer softball as the female equivalent of baseball, and while some courts have accepted this as the equal, some have not. It can be argued that there is a substantial difference in men’s “baseball” and women’s “softball”, since the two sports are played with a variety of differences. For example, the softball is much larger than the baseball and it thus easier to hit and catch. Also, softball if played with 4 “men” in the outfield instead of three, and is often played in seven inning intervals as opposed to baseball’s traditional nine. Upon close examination, it is obvious that the two sports are just that, two sports, two different sports. One court has agreed with this observation, in Israel v. Secondary Schools Activities ,388 S.E.2d 480, (W. VA. 1985), the Virginia court was careful to point out the differences in the two sports, and allowed the female plaintiffs to play men’s baseball. [20]
Soccer, Field Hockey, Ice Hockey, and Rugby have all been ruled contact sports, as have wrestling and boxing. The courts in the wrestling cases decided that girls on the wrestling team violated the goal of health and safety protection of the girls. However, it must be noted that there is still a school discretion involved in making the decision. This year at the Michigan State Wrestling Tournament (an invitation only tournament where the best of the best meet), there were two girls present and wrestling. One of the girls was knocked out in the first round, and one made it all of the way to the semi-finals.
With all of the major four, and some others, falling to the side of contact sports, what can be considered non-contact? Tennis, Track, Swimming, Golf and Cross-Country Skiing have all been traditionally classified as non-contact. There are many other sports the court has not yet ruled on, but with the “contact sports” exception, it is getting easier and easier for school districts to discriminate against females and still be in compliance with Title IX.
“An important issue remains unsettled, namely, on what type of team may a male or female participate. Presently, the first inquiry to be made is whether the team involves a contact or non-contact sport. The second inquiry to be made is whether there exists only a men’s team, or only a women’s team, or both. The result is eight generalizations:
(1) If there is a men’s team in a contact sport, but no women’s team, generally women may play on the men’s team on constitutional grounds, but not Title IX grounds, unless the school voluntarily provides for co-educational participation on the designated contact sport;
(2) If there is a men’s team in a contact sport and a women’s team, generally women may not play on the men’s team, on both Title IX and constitutional grounds;
(3) If there is no men’s team in a contact sport, but a women’s team, men could be prohibited from participating pursuant to Title IX; however there is little case law addressing this unusual situation;
(4) If there is a men’s team in a contact sport, and a women’s team, men could be prohibited from participating under Title IX. There appears to be an absence of case law pertaining to this scenario;
(5) If there is a men’s team in a non-contact sport, but no women’s team, generally women may play on the men’s team, pursuant to Title IX and constitutional theories;
(6) If there is a men’s team in a non-contact sport and a women’s team, women would probably not be allowed to participate on the men’s team pursuant to Title IX;
(7) If there is no men’s team in a non-contact sport, but a women’s team, generally men may not play on the women’s team pursuant to Title IX as the men have not been historically disadvantaged against; and
(8) If there is a men’s team in a non-contact sport, and a women’s team, generally men may not play on the women’s team, pursuant to Title IX. There is no case law regarding this unusual fact pattern.
[16]
The third element to consider is the issue of “level of competition”. The object of Title IX is to ensure “adequate levels of competition” are available to both sexes, including the opportunity for team competition. Thus, if there is a girls basketball team at a high school, but it does not have games, this would not make the school in compliance with Title IX. Schools often try to get around this issue by offering sports in non-traditional seasons. The courts have split on the issue, depending mostly upon if there are other schools who are offering the sport in the same season, thus allowing competition. The best way for a school to be in compliance with the “level of competition” prong of Title IX is to offer the girls’ sports during the proper season and to allow them to compete in the district with other schools, just as the boys teams do. While this does not require separate freshman, junior varsity, and varsity teams for the girls, it does require there to be a team.
With all of the proponent’s of Title IX talking about the good things it has done for women’s sports, it is important to remember that there are two sides to every coin. While Title IX has increased the number of girls participating in High School athletics from 294,015 in 1971, to 2,240,461 in 1995, and increased the amount of spending on females interscholastic sports from $0 in 1971, to 1.8 million in 1993, it has had ill effects also. [21]
The way Title IX is being used and applied, it has turned into a “quota system”. “According to a recent gender-equity study by the National College Athletic Association (NCAA), college women have gained more than 5,000 sports opportunities in the past five years, while men have lost 17,000” [22] Which sports are being cut? Non-Revenue creating, expensive, men’s sports. These are sports like Gymnastics, Wrestling, Golf, and Crew. With Football and Basketball being the two sports which generate the most revenue, followed closely by hockey then baseball to round out the “big four”, they are what is known as “safe sports”, sports which make so much money they can not be cut. The biggest problem is football. This is a guys sport, there is no equivalent to football for women. Football controls a great majority of the scholarships available from a major university, and it creates the most revenue. In order to create that revenue, the school relies on having a team, which is brought in through those scholarships. With out the gross amount of football scholarships, there may not be as much income. However, the downside to this is it limits the number of scholarships available to the “minority sports” men play. Hence the fact that many of those minority sports have been cut. [22]
Where does this “quota” come from? The quota in question is set forth in the U.S. Department of Education’s guidelines on how Title IX should be enforced in college sports. Colleges are required to provide “equal opportunity in the selection of sports and levels of competition” by meeting one of three tests:
* Having roughly equal percentages of female athletes and female undergraduates, a condition known as “substantial proportionality.”
* Having a “history and continuing practice” of adding more teams and roster spots for women.
* Proving that the college is “fully and effectively accommodating the interests and abilities” of women.
Substantial proportionality, the first option, essentially establishes an absolute limit on the number of male athletes in an athletics department. Because more men than women typically go out for sports, that test discriminates against men. Even if colleges choose to comply with Title IX by means of the second or third options, they will have to continue expanding programs until they find themselves at substantial proportionality. Many athletics departments have tried to meet the substantial-proportionality test by eliminating men’s teams or imposing caps on the number of players allowed on the rosters of existing men’s teams. Last year, Miami University in Ohio, Brigham Young University, and the University of New Mexico all eliminated men’s teams, including their wrestling programs. Such moves, critics say, have cost thousands of men the opportunity to play sports in college, without giving women any benefits. [22]
Why is Title IX having this result? When the fed’s made Title IX, they made a huge assumption, they assumed that notwithstanding discrimination, men and women would have the same interests. When you assume something crazy, you get even crazier results. [23] Title IX mandated the number of men and women who participate in sports to be equal. Unfortunately for the men, the women’s interest is not as high as the men’s. There have been an amazing number of men’s program’s cut from major universities, programs with deep roots in the college.
* Syracuse University – University had a men’s wrestling team since 1922. Last January, the university announced that it was pulling the plug on the team, a team that was nationally ranked, and also dumping its men’s gymnastics program
* UCLA – the men’s swimming team got the ax, a program that produced 22 Olympic competitors
* Boston University – Division I football was killed, ending a 91-year run
* Illinois State – cut wrestling and men’s soccer
*Notre Dame – cut wrestling
*Princeton – cut wrestling
*Michigan State University – Cut men’s gymnastics
*Miami University of Ohio – Cut Wrestling
*Brigham Young – Cut Wrestling
*University of New Mexico – Cut Wrestling
“In a recent two year period, 24 colleges and universities did away with men’s wrestling. Another 31 dropped men’s golf. Men’s gymnastic teams on campus, numbering 133 in 1975, are down to less than 30.” [23] All of this, done to meet the gender proportionality mandate.
While this is mostly a NCAA phenomenon, it has its roots at the high school level. High schools have the responsibility of preparing their students for college, and assuring their students get in. In order to better assure a student a chance at a non-academic scholarship, high schools baby their football programs and following in the NCAA footsteps, they cut the minority sports. Title IX has become nondiscrimination to women and the epitome of discrimination to men. [22]
“With college sports, it’s the government funds on campus that make schools subject to the coercive dictates of regulators. With malls and hunting, there’s also the clear existence of government funds, with roads, licensing, police, sewers, etc. If the bureaucrats are right about the sexes being no different, i.e., if women aren’t hard-wired to prefer shopping over hunting, why not install federal equity regulators at the mall entrances to police gender proportionality? No woman gets admitted until a man shows up.
The same with hunting. No man gets to go into the woods until a woman shows up. It’s just like the gym at Princeton. No man suits up until a woman decides she wants to play ball.” [23]
Is this nondiscrimination? Certainly not.
How can we “fix” Title IX? First, we can count the teams, not the roster spots when figuring out compliance. Every sport is different in the amount of players on the field at one time. Take for example football. Football demands 11 players on the field at one time, and that’s just for either offense or defense. So you’re really looking at 22. Then you have to have back-ups for those people, plus you have your special teams players. As for women’s volleyball you maybe have 30 people on the whole team. It would make it much easier on men’s teams and athletic programs if we did count teams instead of roster spots. It would allow men’s sports to stay because now athletic departments wouldn’t have to create new sports just to comply with title IX. This would leave the men’s sports in place, instead of dropping them, which has done in athletic programs in previous years.
We could also not count football in measuring proportionality. You can’t name a women’s sport that carries 100+ people on its roster. If we did count football in measuring proportionality, it would just hurt men’s sports, because women’s groups would look at the statistics and say, well the men’s department has 150 more athletes than the women’s department, it’s not fair. In which case the athletic department would probably shut down a men’s sport, just to satisfy women’s groups and their title IX compliance. In the end, it’s just going to hurt men’s sport if we do count football in measuring proportionality.
The third possibility is to not count revenue-producing sports in measuring proportionality. This would help keep our male/female proportionality closer to 50/50 as far as Title IX is concerned.
We could also make it law that schools can not bring themselves into compliance by cutting men’s sports. Girls want opportunities, but most do not want them at the expense of them men. While some feminist organizations would find fault in making a law to prohibit what has become known as “reverse discrimination”, taking from the men to make the women happy is just that… discrimination. Just because men have not been the ones who have traditionally been discriminated against, does not make them incapable of being the victim of discrimination.
One other possibility, which the authorities tend to shy away from, is the removal of gender from all athletics. Our society seems to put so much emphasis on equality, why not make a true system of equality? If everyone who wanted to play athletics had to go out for the same team, it would make the level of competition the same across the boards. This process would weed out the week athletes and pit those who are vying for important scholarships directly against one another. This process would stop the ideas of inequality, since if there is only one program, the two genders would have pure equality. Those who are against this process claim this is unfair to girls, that they are the weaker sex and can not compete with the boys due to gender and genetic makeup. However, if you buy into the idea that a girl can not keep up with the boys, that a girl is not as “athletic” as the boys, are you not also buying into the idea that the feds were wrong when they made their assumptions about the interest level of the girls? Would less girls be interested in playing baseball if they had to play with the boys, what about basketball? It can be argued that those girls who are serious about their sport would not be deterred, and in fact may welcome this level of competition. If you disagree with leveling the playing field, with letting the girls compete directly with the boys, are you not buying into the idea of “separate but equal”? Does our society not shy away from “separate but equal”? When the African-Americans were being subjected to the effects of “separate but equal”, courts said it was anything but equal, and what did they do, they mandated desegregation, and its working. The female athletes are no more equal under Title IX than the African-Americans were under their version of “separate but equal”, the only answer is to desegregate sports as a whole.