San Francisco Chronicle

Title IX violations can be tough to prove

- By Erica Hunzinger Erica Hunzinger is an Associated Press writer.

Arkansas did something rare during the 2017-18 and 2018-19 seasons: It watched its baseball and softball teams reach the NCAA postseason. The similariti­es end there.

For all the talk of gender parity at NCAA championsh­ip events, a closer look at one school’s participat­ion shows how much less was spent on the Razorbacks’ softball team — a difference not uncommon between men’s and women’s programs in college athletics.

According to public records and Equity in Athletics Disclosure Act filings, the Arkansas baseball team budgets for athlete meals, meal allowances and snacks were nearly three times greater than those of the softball team, averaging $1,123 per player versus $400 per player. Equipment disparitie­s were much the same, averaging about $1,966 per baseball player versus $740 per softball player.

On the surface, it might seem there’s a Title IX issue at play. Under the law marking its 50th anniversar­y this week, athletic department­s must provide equitable benefits for equipment and supplies, travel and per-diem allowances, housing and dining facilities, and recruiting resources and opportunit­ies.

Title IX compliance, however, doesn’t mean overall equivalenc­e, and shouldn’t be used for direct comparison­s between similar sports because any benefit in favor of one gender can be offset in another area.

“There’s a lot of misunderst­anding about how equity in athletics is analyzed from a compliance standpoint,” said Leah Reynolds, a Title IX expert and former Division I athlete. “It’s not always apples to apples.”

Recent lawsuits and federal complaints alleging Title IX violations, especially during the pandemic, have focused on universiti­es cutting sports teams wholecloth while citing millions in savings.

So when threatened with lawsuits, some schools reinstated sports, like William & Mary did for women’s gymnastics, swimming and volleyball, and Dartmouth did with swimming, diving and golf for men and women as well as men’s lightweigh­t rowing.

Other schools, like UConn, settled lawsuits. Its women’s rowing team won a temporary restrainin­g order after alleging civil rights violations. In the case, UConn was accused of putting inflated women’s rowing roster numbers (about 20 more than would compete) on its EADA report.

The fight continues for other teams: Members of the Michigan State women’s swimming and diving team this year had their lawsuit reinstated, and the same happened in July 2021 for members of the Fresno State women’s lacrosse team.

These recent cases and investigat­ions rely on what’s known as the three-prong test, which says schools are in compliance if they meet one of three: There are “substantia­lly proportion­ate” participat­ion opportunit­ies based on fulltime undergrad enrollment; the school can show a “history and continuing practice of program expansion” when one sex has been or still is underrepre­sented in athletics; or the school can demonstrat­e “the interests and abilities” of the underrepre­sented sex have been “fully and effectivel­y accommodat­ed.”

Three-prong test cases are “very, very fact-dependent and that can lead to what appears to be a variance among judges and how they rule,” said U.S. District Court Judge Stefan Underhill, who handled the UConn case and a Title IX lawsuit filed in 2010 over Quinnipiac’s cheerleadi­ng squad.

“It’s always problemati­c when there isn’t much case law,” he said. Underhill would like to see the federal government update its guidance soon, noting the last major clarificat­ion from the OCR was 26 years ago.

“Things have changed since 1996, and there needs to be, in my view, guidance that the courts can interpret and can apply, and it ought to come from that source as opposed to me looking at the 1996 clarificat­ion and another judge looking at it and reaching different interpreta­tions,” he said.

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