Title IX missing teeth

Suppose a boy refuses to share the cookie jar with his sisters.  Whenever this occurs, the boy’s mother threatens to remove his cookie privileges unless he learns to share.  Again and again, the boy hoards the cookies for himself and must be told to share with his sisters.  However, despite this disobedience, his mother continues to let her son eat from every batch of cookies.  As any parent knows, eventually you have to take away the cookies for a lesson to be learned.

Government officials have adopted an unfortunately similar passivity when enforcing Title IX upon college athletic departments.  Title IX of the Educational Amendments of 1972 prohibits federally-funded colleges from discriminating based on gender in the administering of its sports programs.  Each accusation of discrimination is investigated by the Office of Civil Rights.  The OCR has the authority to restrict the amount of federal funds provided to those universities that violate the statute.  Amazingly, though the legislation has been in effect nearly forty years, the OCR has never held back federal funding from an institution for noncompliance with Title IX.  And therein lies the disciplinary problem.

A recent New York Times article profiled two Title IX cases that typify the confusing and often backwards nature of the investigative process.  In 1998, the OCR began an investigation of alleged inequities in the University of Southern California’s athletic department budget between men and women’s sports.  Due in part to USC’s failure to timely submit documentation and the OCR’s failure to communicate, the case somehow remains open to this day.

In 2008, investigators discovered that 12 coaches in Ball State University’s women’s programs resigned or were fired within a three year period, compared to only 5 coaches in the men’s programs during that same time.  In response, the OCR asked the school to investigate itself – a move that makes about as much sense as a judge asking a defendant to determine his own guilt.  Not surprisingly, after a mere two week inquiry that included no interviews of its former coaches, Ball State concluded there was no evidence of sex discrimination in those cases.

In addition, the Times article states that the OCR has “prodded the university to provide locker rooms to several women’s teams after it was discovered that female athletes were changing in their cars and a storage shed.”  The OCR “prodded” Ball State?  As in, pretty, pretty please would you build locker rooms for your women’s teams?

Please.  Allowing universities to investigate themselves or elongate OCR investigations are clear examples of the tail wagging the dog.  The OCR needs to draw a clear line in the sand, as any self-respecting parent would.  The Times piece quotes Neena Chaudhry, senior counsel at the National Women’s Law Center, who correctly concludes that schools are getting away with noncompliance “because they don’t do what their supposed to unless made to.”  Without proper accountability, it’s simply human nature for schools to cut corners, especially when the almighty dollar is involved.

Certainly there has been significant progress for women’s sports since the enactment of Title IX.  Furthermore, there is plenty of healthy debate over the practical application of the legislation in America’s athletic departments.  There is no question that budgets are tight these days and women’s sports don’t pay the bills.  That said, sex discrimination is a serious offense and ought to be treated like one, no matter the economic conditions.  Imposing serious penalties for noncompliance will assist universities in knowing what will be and will not be tolerated.  Athletic administrators need concrete instructions and mandates, not self-imposed wrist slaps or unnecessary wiggle room.

So long as federal funding is never restricted, the government is sending two unfortunate messages to universities: first, that there is no Title IX violation that would justify a cut in federal funds; and second, that Title IX compliance is not that important.  With those ideas in place, don’t expect any leftover cookies in the jar.

Patrick Brennan is a first year doctoral student at the United States Sports Academy.  He is from Michigan where he graduated from the Thomas Cooley School of Law and briefly practiced law.  He is presently serving as a Teaching Assistant at the Academy.  For more information on Academy programs please visit www.ussa.edu.