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Friday, August 6, 2010
Updated: August 9, 3:57 PM ET
Title IX remains viable and necessary

By Nancy Hogshead-Makar
Special to ESPN.com

Critics of Title IX, the federal law that requires gender equality in education, have gone apoplectic over a recent federal court ruling that Quinnipiac University engaged in numerous violations by manipulating female sport rosters and artificially inflating sports team sizes for women. Some sing the tired, old canard that Title IX is an "absurd" law that results in "legal and bureaucratic nonsense" and "ridiculous" results. Others claim the law has worn out its welcome because, as we all must surely know, women no longer need legal protection in the athletic departments.

Gregg Easterbrook on Title IX

Nancy Hogshead-Makar's defense of Title IX is a response to a July 27 commentary by ESPN.com's Gregg Easterbrook, who took exception to a judge's ruling in a Title IX case involving Quinnipiac University. Read Easterbrook's column here.

ESPN.com columnist Gregg Easterbrook's post, "No 'Cheers' for latest Title IX decision," is illustrative of these harangues. He writes, "If Quinnipiac, or any college, had hundreds of men in organized sports but hardly any women, that would be discrimination." Agreed; that would be discrimination. However, the irrefutable conclusion of the judicial opinion is that the university was manipulating the number of sport opportunities for women by double or even triple counting some female athletes, maintaining artificially high roster numbers for women's sports with walk-ons (thereby foreclosing opportunities for women to actually compete in other sports), and otherwise pursuing strategies that reduced gender equality. Let's not forget that just one year ago, as part of the same case, Quinnipiac was found to have deliberately reported fraudulent numbers toward its EADA reports in order to make it look as though it was providing males and females with closer-to-equality sports opportunities. Quinnipiac's newest counting games accounted for a discrepancy of at least 41 female athletes, enough to sustain at least one and possibly two women's teams. Far from a law run amok, the case shows that Title IX remains a necessary tool to thwart this type of gaming of the system to the disadvantage of women.

Unfortunately, Quinnipiac's "roster management" is far from an isolated case. Collectively, these practices paint a far worse picture of women's athletics than the official NCAA-reported numbers would indicate. While Quinnipiac's roster management accounted for a difference of 41 athletes, the Women's Sports Foundation is aware of another school's roster management that would deny 92 female athletes sports opportunities.

Nancy Hogshead-Makar
Nancy Hogshead-Makar is a four-time Olympic medal winner in swimming and the Senior Director of Advocacy at the Women's Sports Foundation.

Easterbrook argues that Title IX is unnecessary because girls' and boys' sports are equal: "Girls and women's sports are now successful, popular and in some cases even self-sustaining." Successful? Sure, as compared with data from 1972. But the simple facts are incontestable. Women still lag substantially behind men overall nationwide in every measure of equality in athletic departments, including scholarships, budgets, coaching salaries, facilities and competitive opportunities. In 2005-2006, male athletes received approximately $162 million more than female athletes in college athletic scholarships at NCAA member institutions. (See the report.) Far from becoming a useless anachronism as critics claim, Title IX remains as important today as it was when adopted. Progress has been made, but the promise of Title IX is still a distant and elusive goal. The Women's Sports Foundation and its coalition partners are committed to this end, and to providing a voice to the millions of women whose dreams rely on this promise.

What's worse is that the trend toward closing the gender gap is going backward in both high schools and colleges. While both male and female sports opportunities are growing across the country, male sports were growing at a faster clip. In 2000-2001, boys enjoyed 1,137,000 more high school opportunities than girls. Whereas in 2008-2009, the gap between boys and girls had jumped to more than 1,308,000, or an additional 171,656 opportunities for boys. (See report.)

The measure of "equal" in our household with three kids under age 10 is simple: Equal is when you're satisfied with swapping out for the other person's share. This is not a novel concept -- the NCAA Gender Equity Task Force defines gender equity in this way: "An athletics program can be considered gender equitable when the participants in both the men's and women's programs would accept as fair and equitable the overall program of the other gender." As it relates to sports, women will forego Title IX when men would happily trade places with the state of women's sports today. Until such time, women regularly rely on Title IX for these important educational opportunities.

Equal is when you're satisfied with swapping out for the other person's share. … As it relates to sports, women will forego Title IX when men would happily trade places with the state of women's sports today. Until such time, women regularly rely on Title IX for these important educational opportunities.

Perhaps Easterbrook has a radically differing idea of "equality" than the general public. In a recent Mellman poll, approximately 80 percent of men, women, Democrats, Republicans, independents, people with and without children all supported Title IX.

Finally, Easterbrook, like other critics of this decision, blurs the federal ruling by focusing on the portion of the judicial opinion that deals with cheerleading. The legal issue was whether cheer -- as currently structured at Quinnipiac -- may be used for purposes of Title IX compliance. Not whether it passes the sports-banter test. The judge was exceedingly careful not to disparage the cheer athletes at Quinnipiac. "The plaintiffs do not challenge the competitiveness of the Quinnipiac cheer squad, and neither do I." No one in the women's sports community, including this writer, has any doubt that cheerleading involves the types of athletic training, skill and risk seen in gymnastics, and that it is a legitimate endeavor. High schools, the NCAA and the Olympic sports movement embrace many aesthetic sports, such as diving, figure skating, mogul skiing, and snowboarding. Instead, the Office for Civil Rights (OCR) -- the agency responsible for enforcing Title IX -- has articulated a number of criteria for an activity to be considered a "sport" specifically because schools were claiming all sorts of non-competitive activities were "sports," such as the debate, dance or drama club. The net result was consistent; schools provided girls with fewer athletic competitive opportunities. Applying the OCR criteria, The judge found that, for Title IX purposes, cheer did not qualify as a sport at Quinnipiac. That's it. Cheerleading has long been part of athletic events and will continue to be part of athletic departments. The opinion will not change that fact. Instead, the opinion assures that Quinnipiac will provide all female athletes -- including the inevitably evolved sport of stunt or competitive cheer that will result from the galvanized cheer community -- with the full range of varsity benefits.

For Easterbrook, courts "have no business sticking their noses into such issues." As an organization advocating for social change for the past four decades, the Women's Sports Foundation understands that society can be slow to self-correct. Other times, it is only achievable through legal intervention. However, Easterbrook's remarks hearken back to a time when there was no recourse for a violation of civil rights. Yet American society was founded by principles of equality, freedom and the rule of law for all.

Meanwhile, the results of a large body of research continues to confirm with certainty that a sports experience leads to higher educational attainment and success in the workplace, life-time lower rates of obesity, breast cancer, osteoporosis, heart disease and depression. (See the Women's Sports Foundation's report, Her Life Depends On It II). Sports for both boys and girls are an investment in our collective future that we're all paying for with tax dollars, as student loans are the lifeblood of most schools. Title IX need not justify itself. Its results over the past 30 years, allowing a new generation of women to develop and showcase their abilities through education, should calm the critics. Instead of these repeated attempts at fault-finding with a 38-year-old law, let's work together to fulfill the promise of Title IX for both men and women, and increase the number of sports opportunities for all of our youth.

Nancy Hogshead-Makar is the senior director of advocacy for the Women's Sports Foundation and professor of law at the Florida Coastal School of Law. She is the author of "Equal Play: Title IX and Social Change," and won three Olympic gold medals and one silver medal in swimming at the 1984 Summer Olympics.

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