Title IX violations can be tough to prove
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.