06/23/2010 05:12 am ET Updated May 25, 2011

Title IX Reinvigorated

When I first began teaching Sports Law in 1985, my class had two women students out of more than thirty. Now my Sports Law course is "gender balanced," about 50-50. Why the change? It is the result of Title IX, the federal law that prohibits gender discrimination in every educational program receiving federal funds. Almost all the students taking the course -- men and women -- were athletes in college.

Congress enacted Title IX in 1972, and the law was signed by President Nixon. (In retrospect, although Nixon was "a crook," he was sufficiently progressive that today he would be thrown out of the Republican Party. Someone would likely pour hot tea on him.) Although the statute was not primarily aimed at redressing gender disparities in college and high school sports, that has been the arena where it has had its greatest impact.

As a direct result of Title IX, at least two generations of girls and young women have had the opportunity to learn about the thrill of victory and the agony of defeat. As the U.S. Circuit Court in Boston recognized in Amy Cohen's lawsuit against Brown University, athletics offers an opportunity to develop "leadership skills, learn teamwork, build self-confidence, and perfect self-discipline." For many high school girls, Title IX paves the way to a college scholarship. For some women, it might even open the door to a career as a professional athlete.

The George W. Bush Administration vowed to gut the law, which opponents had characterized as requiring a strict "quota." Of course, it did nothing of the sort. The administrative regulations simply required an academic institution to meet the athletic needs and aspirations of the underrepresented gender. While one way to meet that goal was by providing athletic opportunities to women equal in proportion to their percentage in the student body, schools could meet this requirement by simply assessing women's interest in athletics and then "fully and effectively" accommodating that interest. No quotas.

In 2005, the Office of Civil Rights in the Bush Department of Education designed a scheme to free covered institutions from their legal obligation. All a college had to do was send an e-mail survey to its women students in which they could indicate their interests. The response to any e-mail survey is foreseeably weak. Nonetheless, the Bush guidelines decided that a lack of response indicated that women lacked interest in participating in sports.

Some long-time opponents of Title IX were delighted. The National Wrestling Coaches Association, for example -- still sore over the slow demise of their great sport on the college level -- hailed the survey approach. Opponents knew that in the long run it could gut Title IX. Remarkably, the National Collegiate Athletic Association, an early opponent of Title IX but now a great advocate of equity, came to the rescue of national policy. It simply advised its membership to ignore the e-mail survey scheme.

This past week the Obama Administration announced it has reversed the Bush policy, which had never really had enough time to smother equity gains made in the previous three decades under Title IX. Vice President Biden made the announcement, characterizing the Bush policy as having created a "loophole" in Title IX. Although normally given to hyperbole, in this case Biden was being too modest. This loophole had potentially been as wide as the Grand Canyon.

While this reinvigoration of Title IX is a welcomed change, it is critical that policy makers explain again what the law requires and what it has accomplished. Title IX does not require any school to abolish any program. No court has ever ordered a wrestling team shut down.
The administration of every college and university makes choices concerning the teams it will support -- choices that must be made consistent with federal law. No one school supports every sport, although Harvard comes close with its 41 teams competing in NCAA competition. A school decides what it will offer to its students, alumni and community on the basis of the interests of these stakeholders.

Title IX simply requires that, in making its choices, a university take into consideration the athletic interests of its women students. While that may have been an astounding policy in the early 1970s, it sounds like simple fairness today. A college may decide to shut down a male sports team where there is difficulty filling out a full squad of players or student interest is quite low. It is always a matter of choice.

What a college cannot do is decide that the athletic interests of women are less important than the athletic interests of men. If those who still oppose Title IX think that is the case, then time has passed them by. Title IX is back.