Title IX Enforcement Could Devastate High School Sports

More opportunities for women shouldn't come at the expense of opportunities for men.

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Allison Kasic is a senior fellow at the Independent Women's Forum.

Earlier this week, baseball fans around the country rejoiced as pitchers and catchers reported for spring training. It's a safe bet that as the Major League season gets ready to start, many children will go to bed dreaming of becoming the next Cole Hamels or Andy Pettitte, leading their team to World Series glory.

Of course, most athletes won't reach the heights of World Series. Most won't turn pro and most won't even go on to play in college. Yet as a society we still recognize the benefits of athletic competition--from physical fitness to building leadership and teamwork skills. That's why recent developments in high school athletics are so disturbing.

The threat to high school athletics comes down to a question of how Title IX, the 1972 law that bans sex discrimination in educational programming, should be enforced at the high school level. A case study of Title IX enforcement at the collegiate level offers a cautionary tale.

Colleges are required to take Title IX into account in a variety of areas including the quality of facilities available to each sex, scholarship amounts, and participation rates. It is the last area that has caused the most controversy.

In 1979, the Office for Civil Rights developed a three-part test for schools to demonstrate Title IX compliance regarding participation rates. Yet only the first test—the test known as "proportionality," which requires that a school's athletic programs' gender ratio is proportionate to the overall student population (i.e. if 57 percent of the student body is female, then 57 percent of athletes must also be female)—provides clear cut numbers. In fact, the proportional gender quota was declared a legal "safe harbor" by the Department of Education in the 1990s and has been the only measure to stand up in courts over the years. It is no surprise then, that proportionality is the enforcement measure of choice for schools.

With rising female enrollments (women make up 6 in 10 undergraduate students nationally), schools are left with two routes to meet proportionality's demands: add women's teams or cut men's teams. The route of cutting men's programming is often attractive as it also reduces schools' spending on athletics, which is even more attractive in a down economy. Just last month, University of Delaware and Bemidji State University cut men's programs.

Those cuts are part of a significant historical trend: a 2007 longitudinal study of NCAA athletic participation data confirmed that over a 25-year period, opportunities for men have declined. From 1981 to 2005, male athletes per school declined 6 percent and men's teams per school dropped 17 percent. Meanwhile, both female athletes per school and women's teams per school rose 34 percent. The total number of women's teams has exceeded the number of men's teams since 1995. It is great to see more opportunities for women, but there is no reason that such opportunities should come at the expense of opportunities for men. Using Title IX in such a fashion flies in the face of the antidiscriminatory spirit of the law.

Now, a new effort is threatening to bring the strict proportionality standard (and the corresponding cuts to men's athletics) to the high school level. In November, the National Women's Law Center filed administrative complaints against 12 school districts claiming that they were not providing enough competitive opportunities for female athletes based on proportionality.

Proportionality's rigid standards have taken a toll on college athletics, and will take a worse toll if applied to high schools. In fact, adopting the three-part test in high schools in the current economic climate would be expected to sideline up to 1.3 million male high school athletes.

There are also serious legal concerns about applying the proportionality standard to high schools. Specifically, a high school following three-part test would be subjecting boys to disparate treatment without sufficiently probative evident that such treatment is needed to combat sex discrimination, which violates the equal protection clause.