Still on the Sidelines: Developing the Non-Discrimination Paradigm under Title IX

I. Introduction Despite the promises of equal opportunity for women signalled by the passage of Title IX of the Education Amendments of 1972 (Title IX), 1 little progress in the creditable realization of this goal occurred in intercollegiate or interscholastic athletics between 1972 and 1992. 2 This lack of progress was unfortunate. 3 In many ways, most women were still on the sidelines. However, recent judicial decisions have allowed many, but certainly not all, women to leave the sidelines and enter the playing fields as equals. By virtue of three landmark cases, Cohen v. Brown, 4 Roberts v. Colorado State Board of Agriculture, 5 and Favia v. Indiana University of Pennsylvania, 6 women who are blessed with great athletic ability have earned a mandate for nu- merical parity with men in intercollegiate athletic programs. In these three cases, federal district courts issued injunctions to prevent post-secondary institutions from eliminating certain women\u27s intercollegiate athletic teams, 7 or reducing them to a lower level status. 8 Every decision was affirmed on appeal. 9 The various courts held that the defendant institutions in each of the three cases had engaged in gender discrimination, prohibited by Title IX, 10 by failing to meet any one of three alternative measures established in the Policy Interpretation. 11 These three measures, which are designed to be considered consecutively, attempt to provide for assessment of the opportu- nity for individuals of both genders to compete in athletic programs by de- termining: 1. Whether intercollegiate [or interscholastic ..