The Secretary\u27s Commission on Opportunity in Athletics Squandered Its Opportunity: Commercial College Sports and Why Title IX Cannot Achieve Full Gender Equality or Prevent the Elimination of Minor Men\u27s Teams

The Department of Education recently announced that it would not revise the regulations which apply Title IX to athletics, thus rejecting the recommendations of its Commission on Opportunity in Athletics. The Commission’s recommendations would have drastically undercut Title IX’s efficacy and established a Bush Administration model for turning civil rights protections on their heads. Fortunately, the Administration heeded the public critique of the Commission’s recommendations and retreated from its previously stated intention to implement them. Instead, it reiterated its support for the principles of gender equality embodied in Title IX. We thus narrowly averted a civil rights disaster. The great shame however, is that a year of expert study and public hearings concerning athletics and Title IX yielded so little insight. An unusual opportunity was squandered for understanding and addressing how Title IX’s efficacy is limited, and how its impact is distorted, by the multi-million dollar commercial enterprises of men’s football and basketball which dominate collegiate athletics. Declining this opportunity, the Commission’s work on Opportunity in Athletics instead continued the long-standing tradition of blaming shrinking opportunities in athletics for men on Title IX. The reality is that the burgeoning arms race in football and men’s basketball is the cause. While the actual number of men participating in collegiate athletics has steadily increased during the thirty years of Title IX’s tenure, men’s opportunities have become increasingly restricted to fewer and fewer sports. Thus, men’s athletic opportunities are shrinking in the sense that the diversity of their opportunities is shrinking. While there are numerically vastly more varsity collegiate slots for men now than thirty years ago when Title IX was enacted, these slots are increasingly concentrated in football, and to a lesser extent basketball, baseball and soccer. The so called men’s minor sports— wrestling, gymnastics, swimming, tennis, golf, track, cross-country, fencing —have been steadily eliminated. Secretary Paige’s Commission collected voluminous, often heart wrenching, testimony from male athletes, their parents and coaches, adversely affected by these eliminations. But the Commission paid scant attention to the cause of men’s team cuts. Instead it relied upon the fuel of the witnesses’ emotional message to fire an attack on Title IX. The Commission issued its February 2003 report recommending substantial revisions in the regulations which apply Title IX’s guarantee of gender equality in education to athletics in federally funded schools. These revisions would have vastly undercut gender equity in athletics, most significantly by diluting the substantial proportionality test for compliance with Title IX. Moreover, by imposing upon female athletes the burden of proving first that interest in equality exists, before any protections can be invoked, civil rights protections would have been turned on their heads, setting a far reaching and dangerous precedent. By undercutting gender equality in athletics, the result of the Commission’s recommendations would have been to reduce athletic opportunities for women; by ignoring the true cause of the shrinking diversity of opportunities for men, the Commission’s recommendations would not, correspondingly have increased or diversified opportunities for men. Secretary Paige’s Commission on Opportunity in Athletics, despite its name, thus failed to do anything but recommend further restrictions on opportunity in athletics for men and women. This article begins with a brief review of the legislative history of Title IX and its implementing regulations, revealing that from its inception, the guarantee of gender equality was to be realized within the context of the status quo ante of men’s commercial collegiate football and basketball. Part Two of the article examines the “Arms Race.” That is, the economics and driving philosophy of Division I football and men’s basketball which require that resources be concentrated in these sports. Part Three provides a case study in the experience of West Virginia University, a member of the Big East Conference of NCAA Division I, where one women’s team and four minor men’s teams were recently eliminated as part of a long term plan to increase the revenues produced by the football and men’s basketball programs. Part Four, “The Title IX Scapegoat” looks at the tendency to blame Title IX for men’s team cuts, in media reports of cuts and in Secretary Paige’s Commission, and concludes that the blame is mislaid. Part Five of the article suggests reforms which would genuinely expand athletic opportunities for men and women. Most of these ideas have been bandied about and substantially disregarded for years. The financial interests of the decision makers dictate that such reforms will not be adopted. It is no mystery that the Commission also failed to examine the adverse effects of the arms race on minor men’s sports and gender equality, or to consider any of these reforms, because its membership was heavily dominated by representatives of Division I schools invested in perpetuating the arms race. Alternatively, Part Five suggests that universities should reclaim their academic missions, and sell off the major commercial college football and men’s basketball teams. They effectively operate as unpaid farm teams to the professional leagues now, so let them shed the charade that they are not, and operate openly and more efficiently and effectively, as the businesses which they are. University spin offs of hospitals and medical complexes from their medical schools during the 1980’s provide instructive models. The article concludes that Secretary Paige was wise to reject the Commission’s recommendations that Title IX’s regulations be revised to dilute the substantial proportionality requirement or to require that women’s interest in equality be established prior to invoking the guarantee of gender equality. These civil rights protections have not caused men’s teams to be cut; eliminating them would only undermine gender equality, and cause more women’s teams to be cut, along with minor men’s teams, as schools scramble to fuel the ever burgeoning demands of mega-bucks commercial football and men’s basketball. However, if Secretary Paige is serious about addressing the problems his Commission revealed, and in enforcing Title IX, then he has much more work to do. He could begin by appointing another commission to study the commercialization of college sports and to make recommendations for how the federal government can encourage a return to amateur college athletics. Such a return is key to enabling gender equality and to diversifying athletic opportunities for men