Donna Lopiano

(WOMENSENEWS)–The word came down unexpectedly on Sept. 29, 2006, spreading across the James Madison University campus in Harrisonburg, Va. The university had decided to unceremoniously cut 10 teams from the intercollegiate athletic program. Seven men’s teams and three women’s squads were axed, effective July 1, 2007.

It was a shocking announcement.

"Nobody had any idea that this was even a thought in their process," said Jennifer Chapman, former captain of the women’s cross country and track teams who heard the news while she was competing at a meet in Pennsylvania. Although her teams survived the cut, her male counterparts did not.

If they were looking to place blame, officials at James Madison provided an easy culprit: Title IX. The program cuts were deep and painful but necessary, they said, because the school needed to remain in compliance with the law that bans sex discrimination in educational institutions that receive federal funds.

The anger was palpable and the result predictable. The Roanoke, Va., chapter of the group Equity in Athletics filed a lawsuit in March against the U.S. Department of Education, which oversees Title IX. James Madison officials who participated in the decision to cut the programs were later added to the suit.

Once again, Title IX will be put on trial. It is yet another skirmish in a battle fought since June 23, 1972, the date Title IX was enacted. On the 35th anniversary, the hand wringing and legal wrangling over a 37-word law designed to level the playing field for women in education and athletics continues unabated.

"I’m not surprised," said Donna Lopiano, executive director of the New York-based Women’s Sports Foundation, a nonprofit founded in 1974 by Billie Jean King to promote athletic opportunities for girls and women. "And I don’t think I’m frustrated, either. I think it’s the nature of the beast, in terms of a citizenry that has rights, to understand that you have to always stand up for your rights."

Battle of Polar Opposites

Lopiano and the Women’s Sports Foundation’s polar opposite in the Title IX battle, the Washington-based College Sports Council, based in Washington, D.C., are oddly in agreement on that point. Council spokesperson Jim McCarthy said he wasn’t surprised the controversy continues, either.

The council, a coalition of coaches, athletes, parents and fans, is working to change Title IX’s proportionality test. It is one of three tests schools can use to meet Title IX requirements, and the most contentious. Schools can be in compliance if the percentage of female athletes is proportional to the percentage of women enrolled at the school. Colleges can also increase opportunities for women or demonstrate they are meeting the interests of women on campus.

"The Title IX enforcement has created a system in college sports unlike any other sphere of American life," McCarthy said. "The proportionality requirement is really a dream outcome for gender activists on that issue. It mandates a specific number outcome in order to achieve, quote, equity. That exists nowhere else in American life."

McCarthy authored a study released in March by the College Sports Council that shows opportunities for men in college athletics have diminished because of Title IX. According to the study, more than 2,200 men’s athletic teams have been eliminated since 1981, a decline of 17 percent.

That conclusion is in sharp contrast to a report issued by the Women’s Sports Foundation earlier this month that said athletic opportunities for men and women have increased overall in the last 10 years. The report also shows that women make up 55.8 percent of undergraduates but only 41.7 percent of athletes.

According to the report, as many as 20 percent of the nearly 1,900 schools surveyed failed when it came to the proportionality test.

"Mind-boggling," Lopiano said of the numbers.

‘Litigation Hit List’

Lopiano disputes the methodology used in the College Sports Council study. McCarthy says the same about the Women’s Sports Foundation report. As for the results, McCarthy said, "I think it really reveals their true intent. That report card, that list, amounts to a litigation hit list."

The College Sports Council is pushing for use of interest surveys to satisfy Title IX requirements, allowed under a March 2005 policy clarification issued by the Department of Education.

"We think that’s a terrific solution," said McCarthy, who argues that women’s teams would benefit because smaller teams would be saved from cuts as schools add large-roster sports like rowing to satisfy Title IX.

Lisa Maatz, director of public policy and government relations for the Washington-based American Association of University Women, an organization that supports Title IX, says the clarification allows surveys to be sent by e-mail and non-responses can be counted as a lack of interest.

"We really don’t think that spam is a really effective civil rights enforcement mechanism," Maatz said.

Terry Holland, athletic director at East Carolina University in Greenville, N.C., panned surveys even though his school was one of the few Division 1-A programs that received a failing grade in the Women’s Sports Foundation report. He said the university was in compliance because it continued to increase opportunities for women.

"Interest surveys are too easily manipulated," Holland wrote in an e-mail, rejecting both sides of the fight. "Like most issues today, reason has been hijacked by politics and narrow agendas. Title IX is good legislation that has advanced women’s rights in all areas, particularly in athletics, in spite of those who attempt to manipulate its use for their own purposes."

Reductions to Men’s Teams

James Madison University used the proportionality test to determine compliance, because, after cutting 10 teams, using the surveys would have instead revealed that they were not meeting the interests of current students, Maatz said. On a campus with a majority of female students, that meant the more severe reductions were dealt to the men’s teams. Among those cut were men’s cross country, indoor and outdoor track, wrestling, swimming, gymnastics and archery. Women’s gymnastics, fencing and archery were eliminated.

Of course, Title IX does not mandate that men’s programs be cut to achieve compliance.

"I don’t think it’s really Title IX’s fault," said Chapman, the former track captain. "I think Title IX’s used as a scapegoat for a lot of schools to make cuts like these.

"I think our school used Title IX as a way to get around what their hidden agenda was. I think a lot of the hidden agenda is to build up other sports programs like the bigger-money revenue sports."

Rutgers, the State University of New Jersey, was accused of using the same tactic last year when five of six teams it cut were for men, despite increases in the football budget.

Chapman now supports the lawsuit against James Madison and the Department of Education, and stands against the Women’s Sports Foundation and other groups working to protect the landmark gender-equity legislation.

Lopiano accepts the fight that lies ahead as the latest and certainly not the last.

"Anybody in the business of social change knows that it takes 60 years to really start to see the results of massive social change," she said.

Viv Bernstein is a freelance writer based in Charlotte, N.C., and a frequent contributor to the New York Times. She is a former staff sports reporter for the Detroit Free Press, the Hartford Courant and other newspapers and has written for numerous publications.

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