Markkula Center of Applied Ethics

Ethics at Noon - Title IX - October 8th, 2003
"The Status of Title IX: Gender, Justice, and Sports"

Transcript of Ethics at Noon with remarks by:
Cheryl Levick, Athletic Director, Santa Clara University
Ted Leland, Athletic Director, Stanford University

A pdf document of resources for Information on Title IX

David DeCosse: I'd like to welcome you all to Ethics at Noon, "The Status of Title IX, Gender, Justice and Sports." I'm David DeCosse, director of campus ethics programs at the Markkula Center for Applied Ethics here at Santa Clara. We're very grateful for the co-sponsorship of this event by the Women's and Gender Studies Program here at Santa Clara and for the assistance of the program's director, Professor Barbara Moloney. We are very pleased to have our speakers today: Cheryl Levick, athletic director here at Santa Clara University, and Ted Leland, athletic director at Stanford University and co-chair of the recent federal commission on review of Title IX regulations. Thank you very much for making the trip down from the school up north. As I'm sure many of you already know, Title IX is a 1972 Federal law. It has made a very huge difference in women and girls' participation in sports. However, the regulations related to Title IX have recently undergone a major federal review that was completed this summer. That review was the work of the federal commission of which Dr. Leland was co-chair. Our speakers will address the topic for approximately twenty-five minutes and we'll then open up for questions. I ask that you keep your questions or statements brief. Now I'll turn over the panel to Cheryl Levick.

Cheryl Levick: Thank you, David, and thank all of you for being here. I know when there's a free day without classes as an optional event, I never know who's going to show. It's really nice to see people in the audience, and I'm delighted that I know half the people in this audience. Ted doesn't know the job is now to make sure you ask him all the questions. For those of you who don't know, Ted and I worked together for ten years at Stanford. So they'll be a lot of kidding and jokes up here because we know each other so well. During the 90s, when we were together, we really collectively built an athletic program that took on the women's side, which is part of our discussion today, that has not been surpassed, in terms of number of championships and what women have been able to do up there. So when we talk about this, we also put the Title IX application into practice at Stanford with a gender, ethnic program that actually was written, funded and implemented, and the end results I think are quite noticeable up there. So, Ted has a lot to be proud of and we are working just as diligently here at Santa Clara. Okay, so Ted and I decided that we would take the topic of Title IX and kind of divide it into two parts. I get the first thirty years, and he takes the last two years. And actually there's as much information in the last two years as there is in the first thirty. The only reason why I opted to cover the first thirty is to make sure that we're all on the same page and that people really understand what Title IX is and really know the changes that have happened over the past thirty years. I will start by saying that I, like many people in this room, are products of Title IX. I did not benefit from Title IX as an athlete. I was right before then and ended up driving myself, paying for things, buying my own equipment, and doing those things. That was pre-Title IX. I, however, have benefited tremendously as a coach, and as an administrator. So, I'm living and breathing as a result of Title IX and it has been in existence for over thirty years.

To do a quick recap, just historically, of Title IX. It is a thirty-year-old law and it is causing as much controversy today as it probably did when it was first enacted. David did tell you what it was and basically is: a statement that simply says: No person in the United States shall on the basis of sex be excluded from participation in or be subjected to discrimination under any educational program or activity receiving federal funds. That is virtually every elementary school, junior high, junior college or four-year institution across the United States because there is not one who is not receiving some kind of federal aid, whether private or public, you are still under compliance. And at some point in the history that was challenged by the Grove City case but indeed it is the truth that, regardless of where you are in the educational system, if you receive federal funds you must abide by this law. The penalty will be obviously withdrawal of federal funds - and that is a threat to that school's education. It makes all people want to try to comply with the law. It was effective in 1975. Although we always hear of it as part of 1972 amendment that is 30 years old, it really wasn't enacted until 1975. At that point in time, look at where we were in terms of participation with girls and women. I have the following numbers that I find are fascinating. In 1978 the number of high school female athletes went from 300,000 to 2,000 000 today. Similarly, in college participation it doubled from 32,000 in 1971 to 64,000 in 1977 to 150,000 today. You can see the growth pattern that has happened through the past 30 years. But despite this growth that we have seen is a direct result of TITLE IX and the good-faith effort by many people trying to do the right thing, there have been difficulties and inequities, challenges throughout these 30 years on what's fair, how do you do it, should all be included, should all be excluded. All the issues that revolve around this topic.

Now, I would like to pause it and say, with regard to Title IX, nowhere in that law does it say sport, nowhere in that law does it say athletics, it really does apply to everything. In math, in biology, as many of us in this room know, there is inequity there as well. But where does it hit the hardest and where is it the most visible? It's in the area of sports and that's why we are here. Many think this law was written for sports and in actuality it was not. It's obviously much broader than that. Where we see the battle is obviously on the basketball court and the football field as opposed to in the science room and the biology center. But the law still applies there, too. The Office for Civil Rights, OCR, is the group that monitors, if you will, to make sure that we stay compliant. It is also the group where, if there is a violation, a complaint can be filed. And over the years many of these complaints that have been filed in the OCR, they hit your campus and they do any type of audit. You will come up with a plan of action that you must follow, must prove it within a certain time frame. When they look at compliance and, again here is a little more background, there are really 13 proven components that we look at. I am narrowing down to the athletic area. And there are 13 different areas that we must look at as athletic administrators to make sure that we are compliant. The first is sport offerings and - that is the one you hear the most about - and the second one is scholarships. So, sport offerings are the number of sports that are offered and available and the number of scholarships that are offered and available are two of the 13 that are most talked about and most prominent in the news. The other 11 areas are really program areas, they look at things like equipment and supplies, scheduling, travel, tutorial services, coaching, facilities, practice and competitors, medical and training facilities, housing and dining, publicity, support services and recruitment of student athletes.

For each of these categories there are guidelines that we must follow. With 11 of those 13 they look at whether you are compliant and if there is a "fittable" allowance there. For example, it does cost more to put a uniform on a football player than it does on a soccer player. You can do that at the cost difference and you are in compliance with Title IX. However, you cannot have a men's basketball team flying everywhere and a women's basketball team taking the bus everywhere. That might be viewed as noncompliant. Again, I am making this very simple but I am giving you ideas of how you look and weight this. We must look at this as athletic administrators every day. When we built a new facility, we did it at Stanford and we built there. And we actually did it here at the Leavey Center when we added on the administrator offices. We looked at the square footage in the locker room for men versus women and down to the office space. I can tell you that the square footage of the offices in Leavey is exactly within a foot of each other for all the men's and women's offices. If you build it, build it right. So, we are very proud of that. The Sports Center at Stanford, we did exactly the same thing, we also added on a lot of locker rooms to make sure that they were equal. So it is easy to do as you build it and have a mindset to do it that way. But the other two components and then I will wrap up

The sports offerings and the scholarships are the two that you hear the most about. And this is where, and why the commission was actually developed. The sports offerings look at the number of participants in each sport. The overall guideline is that you look at your undergraduate ratio of male to female and you try to have that same percentage of male/female sports ratio and participation. So at Santa Clara 55 percent women, 45 percent men, it's actually a little higher than that right now, but, 55 percent men, excuse me, 55 percent women and 45 percent men. We need to have the same numbers, 55 percent of our athletes should be female and 45 percent of our athletes should be male. We need to have enough sports to accommodate that percentage difference. We must look at it there and that is a guide on what it looks like. And there are tests that you can check - it's called the three-prong test that Ted will talk about. To look and see if indeed those participation numbers are okay.

The challenge with this is typically football. Why? Because football has so many more participants, obviously, and there's not necessarily a counterpart on the women's side. So how do you deal with that issue? Yes, we want football; yes, it's a part of American society; how do we do it and still be in compliance and that's the ever-growing challenge. Some folks, such as Stanford, added to the women's side and did not take away from the men's side. Other folks across the country have said, "Can't do it that way, don't have enough money, we're going to drop a number of men's sports to be able to come up with that balance" - therein lies the problem. They're going to raise the problem where people start knocking heads because lots of sports - namely wrestling, men's gymnastics - to name two, really got hit hard because at the same time programs decided to drop, the decline in those two sports in particular, the decline in participation also dropped in those two sports across the United States. Those two things put together led to very unhappy folks, very unhappy coaches, very unhappy moms and dads of people in those particular sports - they're not happy, they're resisting. So there's a counter movement there - you've got the women who are unhappy and suing on one side - they don't think there's enough opportunities. You've got the men in some of the sports that have been dropped over the years mad and suing on the other side because they don't think it's fair that Title IX has caused this problem and they want President Bush to repeal it. President Bush decides, "I'm going to kick it into a commission. I'm going to let the commission review it. I'm going to let the commission review this, look at how we're looking at those participation numbers, the three-pronged test if you will; look and see if that test can be changed in any way so that we can come up with a fair way to do it." At one point it looked like, let's just blow off Title IX and start again. Other people say, "No we want to keep it, just modify it." But I will turn it over to Ted because he was on the commission, he was in every meeting, has every minute, worked on every part of it. He'll talk to you about how it happened, how it evolved, and then we'll go from there. And with that, Ted Leland.

Ted Leland: Thank you, Cheryl. Cheryl knows I've been popping memory drugs all the way down here trying to remember all this stuff but I was pleased when I was asked to serve on the Secretary of Education's Commission on Opportunity and Athletics. The purpose they call it that is because Title IX has so many other influences on College campuses and University campuses outside of athletics but, as Cheryl said, all we read about is the athletic portion. I am going to try to clear up a couple things really quickly and then talk about what I'm interested in and that's the ethical issues and some public policy issues that I think are less unsettled given where we are.

Cheryl mentioned the three-prong test. Basically what it says is that we are required to meet the interest and abilities of the under-represented gender - that's women in this case. So we are required to meet the interest and abilities of the under-represented gender. And the government in 1979 said there's three ways you can do that: you can either have a head count of actual students on your team the first day of participation that's substantially proportioned to the percentage in the student body (that's what Cheryl explained to you, the 55 percent/45 percent ratio). Or the second prong is you can have a history of increasing women's opportunities. So at Stanford we've added some women's sports so we would say we're probably okay on prong two of the three-prong test. So the third one is you can meet the interest and abilities of the women. So you can't produce the head count, you don't have a history of increasing, but you can meet the interest and ability. And it's surprising how many schools meet this three prong test by meeting prong number three. A big part of the controversy has been the public perception of the only way to meet the interest ability test is prong one when the reality is many, many schools meet it other ways and court cases have consistently held up the 1979 interpretation as being fair. Now, I think that the Federal government, as the result of our commission, will need to put in a report. The Secretary of Education looked at that and he has come up with what he calls a clarification letter. So this is all done sort of by letter from bureaucrats in Washington and the recent letter that was sent out this summer basically reaffirms the three prong test. So, in other words, the basic way the government has been implementing this law will remain the same for the foreseeable future. And I think most of us felt that's a pretty good outcome considering where we sort of started all this.

How'd we start? The Federal government was sued by a group of wrestling coaches, United States Wrestling Coaches Federation. They were subsequently joined by swimming coaches, track and field coaches. So I think at the end about four coaching groups sued the Federal government and asserted two things. That the 1979 interpretation, 1979 clarification, and all subsequent clarifications (there were two during the 90s) basically did two things for wrestlers. It made them the under-represented gender, under-represented minority. "We wrestlers have been discriminated against; we are now the group that deserves protection from the government, not women." And the other thing they asserted was that these clarification letters, the '79 interpretation, but more specifically the clarification letters during the 90s, which really spelled the law out, how a school like Santa Clara or Stanford would have to comply with the law, that those rules didn't follow the normal government rule making process. Some bureaucrat in the Department of Education Office of Civil Rights decided this is the way that Title IX would be interpreted and that's a legislative function. In effect, what these wrestlers argued was that the Department of Education made law and the law should have been made in the legislature and there should have been hearings and there should have been all these kinds of things. Well, interestingly enough, it was the wrestler's lawsuit, we went through a process, the wrestlers' lawsuit was hanging over us, we went through this whole thing and in the end the wrestlers' suit was thrown out of federal court, they reintroduced it, but it was thrown out of Federal court, because the judge decided, the Federal judge, I think it was, in the Washington…district decided in effect, "I'm not even going to argue on the merits, I'm not going to argue with you, the wrestlers…I'm not going to argue with the government…you haven't showed me a remedy. How can I fix your problem, you haven't shown me, because the only way I can see of fixing your problems is to go Santa Clara and to go to Stanford and demand that they add wrestling teams, and I'm not in a position to do that. I have no jurisdiction, I have no authority to force people to add your schools back so until you can come up with a better remedy"…and that's basically where it is now. They've re-instituted the lawsuit that had been on hiatus without taking advantage of - I don't know what's going on. I can talk to you faster than Cheryl by the way.

I'm going to go through what I see as some significant successes and some challenges and then I'm going to briefly go through what I think is the most fun part of this. The significant successes of Title IX: it has been powerful. First, it's significantly increased the participation for women in sports. The statistics are, in 1970, 1 out of 20 women in this country, adolescent women participating in sports, and we're now down to 1 in 2 adolescent participate in sports. It's an incredible increase. I think the data also shows, to me at least, that there has been a not significant but a small increase in the number of male participants. If you look around, males or men are saying, "We've been discriminated against, we've lost opportunities." If you look at the numbers, my professional judgement is, that's not true. We've shifted from wrestling to soccer - there's been a lot of shifts from sport to sport but I think that the assertion on the part of some that men - that women have been given opportunities that have been taken away from men - is, I find, not compelling at all. Overwhelming acceptance of the concept of equal opportunity for women - this is one of the most popular laws in this country right now - over 95 percent of the American public favors Title IX. And listen to this, 85 percent of the American public favors Title IX even if it means taking opportunities away from men. If you ask the public a question, do you favor equal opportunity for women even if it means taking things away from men, 85 percent of the American people say yes. So, it's important in changing, this has been an important piece of legislation in changing society's views of women. I think that we heard a lot of testimony from sociologists and political commentators that there's not many other laws that have done what this law has done to change the way our society looks at females and their potential for leadership, their potential for excellence, their potential for the workforce, etc. One of my favorite statistics that is related to that is that in 1970 or in the early '70s Gallup did a poll and they asked the Americans, "Do you think athletic participation is good for the social and character development of your sons?" 1970 parents, good for the son. 95 percent of the American public said yes, American parents, not the public, said yes, athletic participation is good for the social and character development of our sons. Only 20 percent reported the same for women. So, parents in the early '70s weren't aware of the opportunity. Same poll done in the mid 90s, 95 percent for both genders.

So what this law has done, most political scientists would argue, is that the values of the community changed and that's reflected eventually in the decisions the government made. Here's a decision that the government and people have seen was good and they're now supporting it. So, as I said a couple times publicly, the battle for the hearts and minds of the American people has been won. I think people were afraid of our commission because they thought we were going to do some draconian changes to Title IX. I think they were wrong because there's not the public support for draconian changes. They might have been able to change the administration of the law but the basic concepts of the law were too firmly entrenched. There is significant support for the three-pronged test and the three areas of compliance that Cheryl sort of outlined and I tried to elaborate on a bit. The public shares great support for that. But nobody can see an easier way. In other words, people said, "Ted, get this commission together, get everybody together, listen to all these hundreds of people…there must be a better way to administer this." I think what our commission says is, You know, there's really not. This is really almost a brilliant set of options you give these universities and they ought to be able to comply with them. And then, the last thing I want to say, and I think this is particularly true of Cheryl, at least in my career, is that integrated programs have benefited everyone. Those of us who were in college athletics and high school athletics in the 70s were with a very few men, a very macho, a very narrow-minded environment, and the fact that we now have integrated programs which our students at Stanford and those at Santa Clara wouldn't know any different; they have just always had integrated programs. But for those of us who have been through the transition, we can't believe how much better women have made it for men just by the fact that they're there and you can't have the kind of activities that used to happen for all of us old guys who went through some pretty tough experiences.

I'll go through this very quickly, the problems I see with the implementation of Title IX in schools is that they're still not in compliance; we still have a ways to go. Mens sports have been dropped and rosters of men's sports have been capped to achieved proportionality. So while there's been a general increase, in my opinion, in the number of male participants both at the secondary school level and at the intercollegiate level, more opportunities for men, there have been particular instances, many of them, where men have been, where we've given women opportunities at the expense of men. I think that has happened in sort of a microclimate, I would say. There's the argument I said earlier that prong two and prong three of the interest-abilities test is not viable. That there's only one safe harbor in which you have a quota. That the definition of proportionality is inappropriate, you don't need to worry about that. There's a claim, and I thought it was interesting, I'll talk a little bit more about this, that women are not as interested as men in sports, there's that claim out there, I'll talk about that in a second. And there's been inconsistent enforcement on the part of the government. That has been true. I mean we heard testimony after testimony that if you were in the San Francisco district of the Office of Civil Rights you got one reading, if you were in Boston you got another reading; the government just hasn't been clear on what they expected.

Let me talk about what I think is really the fun part, for me at least, as I move through this process - sort of some interesting, what I would call almost ethical dilemmas. I'll try to talk as fast as I can to try to get this.

The first one I see is the whole issue of interest. I mean we, the question is, are there differences in interest in athletics between males and females? And if there are differences should we celebrate those differences or should we eliminate those differences? We heard compelling testimony of people that said, "Look there's no difference in interest between men and women. And if there is a difference in interest in athletic participation between men and women, it's because of years of discrimination and years of lack of opportunity. And that's why men and women are different; if they are different, we're not acknowledging it." And there's another group, what I would call maybe the new feminists, who argue that, "No there are differences in all areas of life between what women are interested in and what men are interested in and we should accommodate that; we should have a way to accommodate. After all, here's the argument, women are much more likely to participate in student government, women are much more likely to participate in high school drama events, college drama events, women are much more likely to participate in high school student government, we don't go into those areas and demand 50/50 or some proportionality why are we doing it in the world of sports?" And I thought it was an interesting dilemma. I come down on the idea and I sort of side because of my experience with Stanford with the kind of build it and they will come, give them the opportunity and women are interested. But when you hear the other side of the argument you have to say, you know this argument is not going to easily go away. It's just not; you just can't sweep that argument that men and women are different in their interests under the table and pretend like it's not a factor in American life.

The second thing I thought was interesting is what do we mean by equal opportunity? When we talk about a "safe harbor," we're talking about that prong one test of the interest and abilities test, the "safe harbor" where you compare the ratio of students on your athletic teams to the ratio of people in the student body, gender in the student body. What Cheryl read to you is basically, when she read to you the law, the law basically says, you shall not discriminate - it has an anti-discriminatory clause - you shall not discriminate. But what do we require? We require that you produce. We require equal outcome. And there are many people that feel that that's un-American. What America should do to prevent discrimination, maybe provide equal opportunity but don't demand equal outcome. And that's what this law in effect says, if you go to prong one, you're in effect demanding equal outcome. And I think that's an interesting dilemma because I find that for Stanford, at least my experience has been, that when we had a goal out there, in other words, if some of you had come to Stanford twenty years ago or thirty years ago and said, "Don't discriminate against women in sports," would we be where we are now? If somebody came to us thirty years ago and said, "Gee Stanford, provide equal opportunity for women," would we be where we are now? And we all know where we are now is good, you know we have a lot of women participating. The fact they came in and said, "You've got this number here, Ted, and we expect you to be at this number; you better have some real good reasons why or you better show some improvement." So, in effect, we got the quota argument, which is prong one. So people say it's not a quota government system, but in reality in most people's perception it is quota.

Where do I come down on this public dilemma? Is it an equal opportunity? Is it non-discrimination? Or is it equal outcome? I come out and I like equal outcome because I think people in athletics like goals. Give me a number, where I have to be, and I will try to get there. The numbers have some downside to them. The biggest one is when you just do numbers, when you count the number of females on the team the first day of competition and there are always lots of ways to manipulate that. There's one school that shall remain nameless on the West Coast that claims on their federal government form that they have 67 women water polo players. And that meets the federal guideline, you have met the requirement. But we all know those women aren't getting the real experiences. They don't have a chance to travel, they don't get coaching, they don't get a chance to participate; the first team does but the rest of them don't. So there is some downside to this having a goal. I like that idea between non-discrimination and equal opportunity and equal outcome. I am sort of an equal outcome.

The last one I want to do is the whole idea of opulence and football. Here's the argument that we heard at commission. You can chart the increased expenditures in women's sports over any period of time. Now go back five years or ten and take any group of secondary schools, universities, little schools, and you can see this huge increase in the expenditures plus the opportunities for women. You can chart that over a period of time. But you know you can see that's why these wrestlers and everybody's mad because of the increases in expenses. But you almost go back to any of those time frames and chart the increased expenditures in football or basketball. Men's football and men's basketball - what I refer to publicly as the opulence in men's football and men's basketball. You almost get the exact same numbers. So the increased expenditures in the last ten years in division 1A, which is what Stanford is a member of, the increased expenditures in women's sports is matched by an almost identical increase in expenditures in football and men's basketball. The argument is there was a big school in the Midwest who said we have to drop three men's sports because we cannot be Title IX compliant. They do that 6 months in the spring; 6 months later they give their football coach a $400,000 raise. So people are skeptical with this opulence in football.

I think there's another problem with it though. We have sort of looked at this. If you look at the amount of scholarships - just the number of dollars given to women athletes in the top 32 programs in this country, these programs all pay big time football. All of them play big time football. All the top 32 schools in giving out financial aid to women all play football. Another example, in the big time BCS football schools, there are about 60 of them that represent 1/5 of Division One. Division One athletics, 300 schools, 60 of them play big time football. But you know those 60 schools are responsible for about 80% of the women's championship teams in the NCAA. If you took this conference out - the WCC in soccer - it would be about 90%. I think if you take the WCC out of soccer, which is a great national success, and you take out the Ivy League in rowing for women, which is a great success, you get to 93% of the champion participants in the NCAA come from 20% of the schools the big time football schools. What you find, when you work on campus, is that football raises/changes the requirement. Yes, you can argue that it is opulence in football that has really held back the amount of women with this retention of the men's sports, but at the same time you can make the exact opposite argument. I mean if I were a women's coach, I would root for football. Even though I would say you're going to put more money in because of what I think the government would force me to do. If you had football, it would force you to do more for the women. Because if you do more for the men, then you are required to do more for the women. And that is sort of what we find. I thought of the differences between interests and abilities and the difference by what we mean by what's fair. You know equal opportunity, nondiscrimination, or equal outcome in this whole issue were interesting dilemmas that are still sort of unresolved.

October 8, 2003

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