Title IX at 40: Most schools still aren't in compliance

Forty years ago, on June 23, 1972, Title IX became law. Its mandate was simple: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

Now, four decades later, enormous progress has been made. We should all celebrate it. But there is also a sad reality that needs to be faced and addressed: Most schools in America are still not in compliance with the law.

To many people, Title IX means gender equity in athletics. But, as the statute’s language shows, Title IX bars sex discrimination in all aspects of educational institutions receiving federal funds, not just athletics. That prohibition has made an extraordinary and undeniable difference.

In 1972, 3.5 million women were enrolled as undergraduates, 44 percent of the total. By 2005, that number had increased to 8.5 million, or 57 percent of all undergraduates. Similarly, the percentage of doctoral degrees earned by women went from 16 percent to 49 percent.

Title IX’s most visible impact, however, has been in athletics – the one highly-publicized area in education where males and females are offered separate opportunities and treatment by gender.

Title IX does not require schools to sponsor any particular sport (or sports at all). It just requires that, if schools are going to offer sports, they have to do two things. First, they have to offer males and females equal opportunities to participate. Second, they have to provide equal treatment to the males and females who are participating, including financial aid (where offered), facilities, equipment, scheduling, travel, recruiting, coaching, tutors, medical and training services, housing, dining, support services, and publicity.

The problem is that, even now, after 40 years, very few schools are doing this.

When Title IX was enacted, schools dramatically expanded opportunities for girls and women to play sports. They learned it was like the Field of Dreams: If you offer opportunities, they will come. Female participation increased to match the opportunities made available. 

As a result, from 1972 to 2011, the number of girls and women participating in high school sports grew from 294,015 (7 percent of all interscholastic athletes) to 3 million (44 percent). In colleges, it grew from 29,977 (15 percent of all intercollegiate athletes) to 193,232 (43 percent).

These numbers reflect both extraordinary growth and a glaring shortfall. Here’s the problem: 43 percent is not equality – especially when 57 percent of the undergraduates are women.

The law actually allows schools to offer girls and women fewer athletic opportunities than their enrollment would seem to justify if girls and women don’t have the interest or ability to participate. But they do. History proves that. Moreover, the difference between the numbers of women participating in high school sports (3 million females) and college sports (193,232 females) shows that colleges could easily field far more women athletes if they tried.

In addition, even the females able to participate in intercollegiate athletics are receiving far less than equal treatment. NCAA Division I-FBS (formerly Division I-A) schools are spending only 28 percent of their total athletic expenditures, 31 percent of their recruiting dollars, and 42 percent of their athletic scholarship dollars on women athletes.

Why? Some people point to football, claiming it makes money. But the claim is false – the overwhelming majority of schools lose money on football. And it could not justify sex discrimination even if it were true. Schools can’t discriminate against women to make money. Yet many keep spending more and more on football, shortchange or cut other men’s teams in the process, and then try to scapegoat Title IX.

Expenditure differences alone, to be clear, do not necessarily constitute a violation of Title IX. For example, uniforms for some sports cost more than uniforms for other sports. As long as men and women, overall, are being provided with uniforms of equal caliber, Title IX is satisfied.

But those are not the sorts of differences the expenditure differences above reflect. And when many male athletes (usually football and basketball players) are receiving exceptional treatment, while only a small number of female athletes (usually basketball players, if any) are receiving similar treatment, the school is probably violating Title IX.

Most schools are not providing men and women with equal opportunities to participate and equal treatment in athletics because most educational administrators are not sufficiently dedicated to achieving equality. 

The federal government has never brought a single enforcement action against a school for violating Title IX. Most coaches, parents, and students don’t know their rights. So lawsuits are not filed unless schools do something egregious enough to get girls and women angry, like cancel an active women’s team. Then females sue – and they win.

What these women are winning – and what’s at stake – is not just simple fairness, as important as that is. Research shows that girls who play high school sports are 20 percent more likely to graduate and 20 percent more likely to attend college.

Girls and women who participate in athletics have increased cardiovascular conditioning; are less likely to smoke; have a reduced risk of a wide variety of health problems, including estrogen-related cancers, obesity, dementia, depression, and suicide. On the flip side, they have increased emotional and psychological well-being, self-esteem, and self-reported quality of life.

When they gain that, the boys and men in their lives – and all of us – benefit, too.

Title IX’s 40th anniversary deserves celebration. But four decades after Title IX was enacted, millions of females are still being deprived of the equality and benefits it requires. School administrators, the federal government, coaches, parents, and students need to make sure that inequality ends – and that all schools in the country are complying with Title IX. Then we can have the grand celebration this historic law against sex discrimination truly deserves. 

Arthur H. Bryant is the executive director of Public Justice, a national public interest law firm that has successfully represented more women intercollegiate athletes and potential athletes in Title IX litigation than any organization in the country.