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Gender Equity in a Time of Fiscal Restraint

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The emergence of women's collegiate sports at the varsity level since the early 1970s has been a significant social phenomenon. The number of women participating in sports has increased over 500 percent. This dramatic increase was not simply the result of the belated discovery by women of an interest in athletics or of the value of athletic participation in the development of life skills, although that played a significant role. Primarily, the blossoming of women's athletics was the direct consequence of the enactment of Title IX of the Education Amendments of 1972.

Congress and the Nixon administration sought to outlaw discrimination against women by educational institutions that received federal funds. That covers virtually all colleges and universities. The legislative process had not focused on sports, but women's athletics has received the greatest payoff from the legislation, and, at the same time, it has been the source of its greatest controversy. Sensing that resources for college athletics was a zero-sum game, male college athletes felt shortchanged when women college athletes were promised equity. In the beginning, the NCAA strenuously fought against the implementation of the statute.

Today, colleges and universities face economic turmoil like the rest of society. They have found that cut-backs in the varsity athletic programs offered to students are an easier way to address financial concerns than, for example, laying off personnel or cutting academic programs. This is not the first time that college sports have been sacrificed, but this time the institutions must be especially cognizant of their obligations under Title IX. There is no exception to the requirements of Title IX just because a school's endowment has been slaughtered on Wall Street.

Under prevailing law, which is based on the Brown University case brought by women gymnasts whose team had been eliminated in a university-wide cutback, institutions must "fully accommodate" the interests and abilities of women to participate in intercollegiate sports. It is not simply a matter of eliminating equal numbers of men's and women's teams or even equal numbers of opportunities to participate for each gender. Women's teams simply cannot be eliminated unless a college can prove that females in the student body have their interests in participating fully met. Unless college women suddenly decide that they no longer wish to pursue college athletics, schools will have to save money by cutting only men's teams or finding some other means to balance their budgets. They can always follow the Brandeis University approach of either selling their artwork (which Brandeis ultimately decided not to do) or cutting pension contributions for their loyal employees (which Brandeis decided to do last week).

There is another way colleges might stay on the sunny side of the law. If the percentage of athletic opportunities available to women equals the percentage of women in the student body, they are in compliance. For example, if women make up forty percent of the student body, then forty percent of the athletic participation opportunities must be available for women. This "proportionality" test has been hard for most institutions to meet, in particular because of large football squads, but a school in compliance can reduce athletic opportunities as long as it remains in proportion to the gender makeup of the student body.

These are not hypothetical issues. This past week Federal Judge Stefan Underhill in Connecticut issued a preliminary injunction against Quinnipiac University which had announced in March that it would eliminate its women's volleyball team, men's golf and men's outdoor track, as well as promote cheerleading to varsity status. The University could not abolish the women's sport. Quinnipiac announced it would comply and reinstate the women's volleyball squad.

Surely any effort by colleges to cut men's sports will arouse enormous resentment from male athletes and athletic boosters, in particular if it means that sacred cows, like football, might have to make sacrifices. Many colleges maintain semi-professional football clubs that in some instances actually produce revenue for their institutions. One option might be to cut the multi-million dollar contracts they give their coaches. College baseball would seem to be a more likely target for total elimination, but if institutions cut their women's softball team, they will be sued and they will lose.

Title IX remains the law, unless Congress sees fit to amend it. College sports, however, are not first on the Congressional agenda. Individual schools will continue to make economic decisions that will address their own financial circumstances, but they must do so consistent with prevailing statutes.