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Background• Dramatic effect• Title IX’s significance
– Defeat of Tower Amendment– Amplified by regulations
Distinguish effect at D-IA schools and all the rest
• at time of Title IX, funding for ♂’s non-revenue sports significantly exceeded women’s funding for many schools
• today, key in HS and DIII is whether sports offerings “effectively accommodate the interests and ability” of male and female students who are already enrolled at the institution
• In contrast, in DI, q is which male or female athletes should be recruited and financially support to attend a university
Pre-Title IX: Blair• Should it be a defense to a claim under these
state provisions that a state university provides the same subsidies for men’s non-revenue sports as women’s non-revenue sports?
• Suppose Blair rejected WSU’s argument, and required expenses to be equalized regardless of sports?
Title IX’s 3-prong test
1> Are participation opportunities provided in numbers substantially proportionate to respective enrollments?
2> Can U show a history and continuing practice of program expansion?
3> When one sex is underrepresented, can U show “the interests and abilities of the members of that sex [has] been fully and effectively accommodated?"
Evaluating the text• Why should enrollment be the test?
• Bottom line: can’t meet OCR guidelines, offer football, and provide both men’s and women’s teams in other sports
Prong #3: Interest of students
• prong’s focus on secondary and DIII schools w/ few recruited athletes is that U need not “rain money on otherwise disinterested students”
• even at Brown, can’t base D-I offerings on “student interests in athletics” [937] b/c students who can play varsity were recruited, and if Brown didn’t have sport, would go elsewhere
• Yuracko [968-9]: goal is social transformation to encourage girls to develop socially valued traits associated w/ competitive athletics
Where to cut?
• Is it fair to offer more non-football opportunities to female athletes?
• Legally, does cutting men’s sports violate Title IX?
• The Equal Protection Clause?
• What should a school needing to cut back on athletics be permitted to do?
The “Mythical Title XI”
- §1: where resources and enrollment permit, any boy has the right to participate infootball
- §2: subject to resource constraints, all boys preferring other sports that American boys typically play should have a comparable an opportunity as possible compared to their football-playing fellow students
Reform Proposals• Modest
– reduce D-I football scholarship totals from 85 to 55, making them equivalency
• Radical– abolish all D-I men’s sports that don’t make money– provide for sufficient women’s sports to equal men’s
scholarship– typical school would keep football and men’s
basketball (68 male scholarships) and about 5 women’s sports
