Ironies, Inconsistencies, and Intercollegiate Athletics: Title IX, Title VII, and Statistical Evidence of Discrimination

Abstract

Title IX of the Education Amendments of 1972 generally prohibits sex discrimination by education institutions that receive federal funds. In a series of recent cases, the courts have applied this prohibition to intercollegiate athletics. They have generally reached three conclusions: cutting back on women's teams usually violates the statute; cutting back on men's teams usually does not; and the basic test for equal athletic opportunities requires parity between the number of positions on women's and men's teams and the proportion of women and men in the school's overall enrollment. In this article, we argue that only the first of these conclusions has much to be said for it, and only if it is women's teams alone that are cut or that are cut more drastically than men's teams. The second and third contradict settled principles under other civil rights statutes about how to achieve equal treatment and how to use statistical evidence. Levelling down, by cutting either women's or men's sports alone, decreases opportunities for one sex exclusively and should be disfavored for that reason. Moreover, the discrimination prohibited by the statute should not be defined by using simplistic statistical tests. Instead, colleges and universities should be given the flexibility to comply with the statute by taking account of more complicated factors that affect the pool of students who can realistically participate in intercollegiate athletics.