Transcript

Host: Hello and welcome to Prevention and Protection, UE’s Risk Management podcast. This is the first in a special two-part series of podcasts in honor of Title IX’s 50th anniversary. Today’s discussion focuses on athletics and, more specifically, Title IX’s impact on the past, present, and future of K-12 and collegiate athletics. Our host is Alyssa Keehan of United Educators’ Risk Management department. Alyssa is the Director of Risk Management Research and Consulting, and she’s joined by Title IX athletics expert Janet Judge. Before we begin, a quick reminder to listeners that you can find other UE podcasts, as well as UE Risk Management resources, on our website, www.ue.org. Our podcasts are also available on Apple Music. Now here’s Alyssa.

Alyssa Keehan: Hello and welcome to Part 1 of “Title IX at 50,” our special two-part series of podcasts by United Educators focused on understanding the past, present, and future impact of Title IX in honor of the law’s 50th anniversary. I’m Alyssa Keehan, Director of Risk Management Research and Consulting at United Educators, and I’ll be your host.

As part of this series, we’ll interview different experts who’ve devoted their careers to studying and advising educational institutions about Title IX. In this episode — or Part 1 — we’ll examine Title IX’s impact on athletics. And in Part 2, we’ll address its impact on student sexual harassment. For a long time, Title IX was synonymous with athletics, particularly women’s athletics.

In this episode, we’ll explore why that was, how Title IX has impacted K-12 and collegiate athletics, and explore what’s to come. Joining us for this discussion is Janet Judge, a very esteemed expert in the field of Title IX athletics and a former college athlete herself, who’s had a long career advising educational institutions in this area. Currently, Janet is a Partner with Education & Sports Law Group, and she was recently recognized as one of the nation’s best lawyers for sports law in the Boston region. Janet has more than 30 years of experience in higher education, intercollegiate sports, and with Title IX. Janet, it’s a real honor to have you here on our podcast. Welcome.

Janet Judge: Hey, thanks, Alyssa. The honor is really all mine. I love to talk about Title IX and the value of sports for boys and girls, men and women, and particularly for the leadership development it creates for women in sport. Thanks to United Educators for recognizing this important milestone and for highlighting the Title IX journey and for taking the time to think about the future of high school and college sports. Great to be here. Thanks again.

Keehan: Great. I want to take us back to the beginning of Title IX. Can you help us set the stage a little bit? How many women were playing college sports in 1972 — the year that Title IX was passed into law — and what did the scene look like for gender equity and athletics at that time?

Judge: According to the NCAA, women playing college sports was about 30,000 women. In the high school level, there were about 294,000 playing high school sports in 1972.

Right now, to give you some context, at the collegiate level, more than 221,000 women are playing NCAA sports. At the time of its passage, for example, the NCAA was a male-only organization. The Association for Intercollegiate Athletics for Women (the AIAW) was just in its infancy. It was the chief governing body for women’s sports, formed in 1971. The organization had about 1,000 members — it grew to that number by 1980, and it had sponsored 35 national championships by 1980. But again, in 1971, still in its infancy.

That was sort of the landscape when we were thinking about Title IX in 1972. Well, the law was really the brainstorm of Senator Birch Bayh with input from Patsy Mink, Bernice Sandler, and Edith Green. They were the primary forces behind Title IX’s passage. Remember, the law did not specify athletics when it was passed in 1972. Birch Bayh, Patsy Mink, and others were quite candid in their discussions. I had the opportunity to meet with Birch Bayh, Patsy Mink, and Bernice Sandler. They were quite candid in saying that they didn’t really even think about the law’s application to athletics at the time that the law was passed. Each one of them had their own particular story when they were thinking about gender equity in education generally.

Birch Bayh’s wife, Marvella, had been the recipient of one of the letters that were sent out routinely to women who were applying to go to higher education saying, “Thanks for your interest in our institution, but we’ve already given out all the spots that we’ve allocated for women.” And that was legal.

Patsy Mink, the first woman of color in Congress, had received some rejection letters in her own right. She really wanted to be a doctor and had received rejections for medical school. She eventually turned her energy and attention to law school, much to the benefit of athletes to come, and ended up enrolling at the University of Chicago.

And then Bunny Sandler, Bernice Sandler — often referred to as Bunny Sandler — had her own story where she had suffered some challenges in her career track as a professor, where she was told pretty bluntly that “She came on too strong for a woman.” When she heard that statement made to her, she thought, “I wonder if any man has ever been told that their advancement has been impeded because they come on too strong for a man.” She was the one who started to do a lot of the research in the area and found that there were loopholes in the protections when it came to sex discrimination in higher ed.

Keehan: Well, that’s some really interesting history that you’ve shared there about the bill’s congressional sponsors and also about kind of what the status of women’s sports looked like in 1972. Not a lot of equity. But then Title IX comes on the scene. June 23, 1972, President Richard Nixon signs Title IX into law. It passes, but the impact on school athletics was far from immediate. Janet, why was that? What happened after Title IX’s initial passing?

Judge: Well, when the law was initially passed in 1972, and I have to say, I was playing sports back in 1972, was in elementary school, but I can remember the passage of the law. It wasn’t talked about a lot in the beginning. And then there started to become a debate around the application of the law and how it actually was going to play out. Now, a little bit of context, remember, 1973, that was that epic Battle of the Sexes between Billie Jean King and Bobby Riggs sponsored by Virginia Slims. Think about that. A tobacco company at the time with the slogan, “You’ve come a long way, baby.” Billie Jean King wins in straight sets. I have to admit, I’m the youngest of seven. I have five older brothers. I earned some money in there. I’d like to make sure that the NCAA rules around gambling would not apply to me at this point in time making that admission.

But that was sort of the climate, right? That was a big national event and there was a lot of discussion around it. In 1975, we had the Title IX regulations promulgated and signed into force by President Ford. In those regulations, we did see some discussion about application of participation, financial aid, and some non-exhaustive list of treatment areas as it applied to sport. There was a recognition on college campuses and in K-12 across the country that in the areas of sports, this was a place where we were going to have sex segregated educational opportunities.

Maybe the application of law would be a little bit different when it came to athletics as compared to how it was being applied in other areas of the educational institution. In 1976, after those regulations were passed, the NCAA actually filed a lawsuit challenging the application of Title IX in sports. There was a lot of discussion about Title IX was going to be the absolute downfall of college sports. There was concern about that. They challenged it. Even when Title IX was being passed, there was a lot of discussion about trying to exempt revenue-producing sports from its application. Now, let’s talk about revenue-producing sports for a second, because that keeps on coming up when we talk about Title IX and its application.

When we talk about revenue sports, we’re really just talking about those sports that may bring only a dollar and maybe net-negative revenue when it comes to how the finances work at the end of the day. At the time, there was a discussion trying to say that, “Hey, those sports that brought any dollars in the door, whether or not they were profitable at the end of the day, should be exempt.” Those efforts didn’t even make it out of committee, although we still have some people talking about those exemptions to this day. Well, the NCAA filed that lawsuit in 1976. That case was dismissed two years later and never went very far.

In 1976, we also had a very, very public student voice action. I think students have been very, very instrumental in the enforcement of Title IX and an expansion of Title IX in the athletic space. We had a group of very, very competent, talented, smart rowers at Yale University who had been sharing facilities with the men’s team. But where the men had locker room facilities out where they were rowing, the women had to go back into an unheated school bus and wait for the men to shower and be ready to go back to campus. They said the rides in the school bus were not always the most easy to tolerate and generous. There was a big divide between the men’s and women’s team. Eventually those women staged a protest. They actually set up a meeting to walk into an athletics administrator’s office.

They tipped out a string reporter for The New York Times. When the team walked in, they had a prepared statement talking about, “These are the bodies who are freezing cold after they get off the river and sit in an unheated bus.” It’s a very, very powerful statement. They dropped their coverings and they stood there with their naked bodies with Title IX written across them. It was a pretty powerful movement. In this way, student activism really helped expand the knowledge base around Title IX and its application.

The next big milestone came just three years later when we saw the 1979 Policy Interpretation on Intercollegiate Athletes in Sport. That is really sort of the Title IX compliance guidebook.

It really sets forth the very specific application that Title IX has in the athletic space. In fact, in a recent webinar hosted by the Office for Civil Rights [OCR], which is the chief administrative agency charged with enforcing Title IX, the speaker from OCR said, “If you want to know how OCR applies in the athletics equity space, make sure you become very familiar with the 1979 policy interpretation.” In this interpretation, they set forth very specific language around how Title IX applies in three very distinct buckets: participation equity (the ability to participate in sports), scholarship equity or athletics-related financial aid (again, this is one of the only areas in educational spaces where you are intentionally providing dollars to males and females), and then in 11 non-exhaustive treatment areas, commonly referred to as “The laundry list.”

Alyssa, if you just allow me to just rattle off the laundry list, I think it’s important just so people know. They hear about the laundry list, but they’re not always thinking about what are the specifics of it. We’re talking about the provision of maintenance of equipment and supplies, scheduling of games and practice times, travel and how student-athletes are fed when they’re on the road, opportunity to receive coaching and how available coaches are and how they’re compensated, opportunity to receive academic tutors or academic services, provision of facilities, so all the spaces where athletes touch or practice or spend time in. We’re talking about lounge spaces, academic spaces, locker rooms, practice, and competitive facilities. Provision of medical and training services and facilities. Provision of housing on campus and how are athletes fed on campus and how nutrition services and support that they may be receiving, and then communications and publicity. How are we getting the word out about our athletics programs and are we doing that equitably? That has become a big focus of interest with NIL — name, image and likeness — and whether or not we’re providing our male and female student-athletes with equitable opportunities to benefit from NIL in those spaces. And then recruitment, are we providing equitable opportunities to recruit in male and female student-athletes? And then what are the other support services that we may be providing for male and female student-athletes overall and are they provided in equitable way?

A couple things to be thoughtful about when you’re looking at the treatment, because that’s a lot of the focus of what’s going on right now in athletics. You’re looking at the overall men’s program as compared to the overall women’s program. It’s not mirrored sports league. You’re not saying, “Hey, the men’s soccer team gets this, so the women’s soccer team should get that,” or the other way around. But the reality is you’re thinking about the overall men’s program as compared to the overall women’s program.

I think people need to be mindful of how mirrored sports stack up sports to sport, because that is how student-athletes are looking across the table to see if they’re getting the same things as other student-athletes. But important to think about, it’s an overall men’s program as compared to the overall women’s program.

Keehan: It sounds like even though Title IX passed in 1972, it didn’t really start to take shape as an agent of change for athletics until that 1979 policy interpretation was issued. Is that true?

Judge: Absolutely. I mean, for the most part, schools didn’t really know what to do with Title IX. We did see some movement, right? There were sports scholarships that were offered. You probably have seen with the 50th anniversary of Title IX, Ann Meyers, who’s a sports legend, was one of the first to receive an athletic scholarship in 1976. There were many women who were receiving athletic scholarships starting around that time. When Title IX was passed in 1972, it had a deferred enforcement date until the mid-1970s. Schools were still trying to wrap their minds around what this meant in the college context. It wasn’t really until the policy interpretation in 1979 that people really had a good understanding of what their responsibilities were.

And then after that, we had the 1980s, right? In the 1980s, we continued to have movement. We had, for example, the NCAA decide in the 1980s that they wanted to have a much more active role in the oversight of women’s sports. While the AIAW had been still the oversight agency, as I talked about before, and they were not happy with the NCAA taking over the oversight of women’s sports. There was a contentious period there where the AIAW actually sued the NCAA around the NCAA’s step to overtake women’s sports. Eventually, the NCAA prevailed and started to sponsor collegiate championships for women starting in 1982. We saw that women began to have national championships in the early ‘80s, but they weren’t the NCAA championships until the NCAA took over.

I have a unique experience. I participated both in the pre-NCAA national championship tournament in soccer in Colorado Springs in 1980, and then 1981 in NCAA championships, which I believe at the time were in North Carolina. It was an interesting time for those of us who were participating in sports at the collegiate level, because we were hearing a lot of mixed messaging around whether or not the NCAA was the future of college sports for women or whether or not women’s sports should stay true and remain with the AIAW. As a college athlete, it was a very heady time. There were all kinds of opportunities opening up for us that had not been there before. Just the very idea of walking out on the collegiate tournament on that field was an amazing experience for me.

After that, in 1984, we had a challenge on the enforcement of Title IX. Title IX applies to colleges and universities and schools because they are the recipients of federal funding. I’m going to talk about that in a minute when we talk about enforcement, but we had a school called Grove City that challenged that enforcement in 1984 saying, “If those federal dollars don’t go directly to benefit athletics programs, then the federal government should not be able to extend the reach of Title IX to those athletics programs.” Well, that went all the way up to the Supreme Court, and the Supreme Court actually agreed with Grove City. For a while there, the application of Title IX to athletics programs was suspended.

Well, Congress came back with the Civil Rights Restoration Act of 1988 directed expressly to address the Grove City case and to say specifically that if an institution receives federal funding in any way that all of the educational programs and activities will be covered by Title IX. In that way, those lawsuits that had been suspended, the enforcement action that had been suspended, even the expansion efforts of schools had taken a toll for a period of time, and they started back up toward the late 1980s.

Keehan: Janet, you’ve talked a little bit about what was going on with Title IX athletics in the ‘80s, but I’d like to turn us now to the ‘90s. It seemed like Title IX athletics enforcement really started to pick up steam in the ‘90s, kind of looking more like the law that we associate with and know of today. Why was the 1990s such a growth period for enforcement of Title IX?

Judge: Well, for the most part, the enforcement came through judicial enforcement in the ‘90s. We had the seminal case of Brown v. Cohen in the early 1990s, where we had an institution look to eliminate two men’s programs and two women’s programs. There was a lot of thought, “Well, that was equitable, right? We had two men’s programs being eliminated and two women’s programs being eliminated. How would that be a violation of Title IX? Well, we had this happened in the First Circuit. We had a federal district court charged with really interpreting what Title IX was all about and looking at the 1979 policy interpretation, the regulations in the law and trying to make headway out of this.

The court found that the institution had not been in participation compliance with Title IX prior to the eliminations, and that actually by eliminating these programs, was even more out of compliance from a participation standpoint under Title IX. We had a federal court go step by step through how you comply with regard to participation compliance under Title IX and find that there was a judicial right of action for private litigants to go to courts. That was a pretty important development with regard to Title IX. I have a very personal tie of this. I clerked for Judge Stahl in the First Circuit after I graduated from law school.

Judge Stahl was the only judge on both appellate panels in the Brown v. Cohen case, and I actually got to sit in on oral argument in that case and see some amazing discussion around the application of Title IX. Judge Stahl likes everybody to remember that he was on both of those appellate panels, because he feels like sometimes he ... I think the story he recounted is that he was walking through Cambridge one time and overheard two women talking about the Brown v. Cohen case and they said that they thought it must have been a female judge on the appellate court. Judge Stahl just wants people to know that he was on that panel and that he was instrumental in this case.

In 1994, we also had the EADA — the Equity in Athletics Disclosure Act. That was the first time that private schools had to disclose their athletic equity statistics. Public schools are always subject to Freedom of Information Act requests. But under the EADA, public and private schools, colleges and universities, had to report their participation, scholarship, average coach compensation by gender of team coached, recruiting dollars, among other equity-type aggregate data. It was the first time that people really got an insider’s view into how schools were doing in the equity space.

Shortly after that, in 1996, the Office for Civil Rights really kind of kickstarted their enforcement by issuing a Dear Colleague Letter, which is very much in effect today, explaining how the Office for Civil Rights, the chief administrative agency in charge with enforcing Title IX, would be evaluating athletic participation equity. They drew a lot from the Brown v. Cohen opinion, not all of it, but they drew a lot of their guidance from that opinion. And that became the letter of guidance that is still in effect today on how schools should determine whether or not they are in compliance with that very baseline component of Title IX.

Basically, it’s a three-part test.

We’ve heard a lot about substantial proportionality. That’s prong one. That looks to see whether or not institution’s athletics participation opportunities are aligned with the percentage of males and females in their undergraduate full-time population. Now, Title IX doesn’t require exact proportionality, meaning if a school is 50/50 male and female undergraduates, that their athletics participation opportunities have to be 50/50. But the test for substantial proportionality is quite specific and looks to see whether or not a viable team could be sponsored within the number — that is the gap between the current participation opportunities and exact proportionality.

Now, there were two other ways that were set forth for complying with participation equity, and schools have the right to choose which one of the three tests that they’re going to rely on. Now, we’re 50 years out. The second test is saying, “Hey schools, if you’ve had a full history and ongoing approach to expansion of participation opportunities for the underrepresented gender and for the vast majority of schools that still is women in the athletic space, then we’re going to allow you to have temporary compliance until the next time you expand opportunities for the underrepresented gender.” Now, this is a really unique application of a civil rights law.

We don’t have this in just about any other civil rights law where we say, “Hey, schools, if you are working toward equity, we’re going to give you a temporary pass on the enforcement mechanism.” Now, 50 years out, it’s pretty difficult for schools to show that they have continually been expanding the participation opportunities for their programs but aren’t there yet.

And then the third avenue of demonstrating compliance is by showing that the current program, even though it’s not substantially proportionate to the undergraduate population, effectively exhausts all of the interest and ability of the women who are on campus and those women who have applied to the school and have been accepted, whether or not they choose to come.

There’s a footnote in the 1996 clarification that says schools must only respond, however, to the interest of their current student body.

Those are the three separate ways to come into compliance with Title IX. We’ve seen a lot of discussion around it with sport elimination cases lately, where the course have made it very clear that given the nature of those three tests, if you eliminate participation opportunities for the underrepresented gender, the only avenue for compliance would be that prong one test, substantial proportionality.

Later in the ‘90s, the Office for Civil Rights also issued what came to be known as the Bowling Green Letter. It’s a letter that clarified what the test is for scholarship equity in the Title IX space. Again, remembering that this is the space we are intentionally allocating athletic scholarship dollars to men and women, the Office for Civil Rights determined that there should be a very exacting test. They look at the unduplicated participation percentage of male and female athletes in athletics. They say that they believe, for example, if 50% of your athletes are male and 50% are female, that 50% of your dollars should go to men and 50% of your dollars should go to women. They allow schools to have a 1% fluctuation in that, and then very limited non-discriminatory differences having to do with differences in in-state and out-of-state tuition and phasing in new athletics programs in order to comply with the participation piece.

Those were all the things that were going on in the ‘90s. And of course, in the ‘90s, Alyssa, you were playing sports. Can you share with us a little bit about what your experience was like?

Keehan: Yeah, I absolutely can. I actually filed a complaint against my high school, a Title IX complaint against my high school, because I played softball in college, but I also, of course, played it in high school. We did not have a softball field to play on. We played on a boys’ little league diamond with a pitching mound, which is very different for people who’ve played both or at least seen both at this point. You have a grass infield. I have to say, the Department of Education actually investigated my complaint and found that my high school was in violation and they had to build the girls’ softball field.

That was kind of cool. And then, yeah, I got to play softball at Princeton and ended up being a part of the first Ivy League softball team to ever compete in the Women’s College World Series — a record that still holds true today. Pretty cool. All because of Title IX.

Judge: How about that, right? Another example of — I don’t know about you, Alyssa, but I think often — I loved my academic experiences in college and I was very invested, but in my work and when I think about a lot of what goes into being a leader in the professional world, a lot of it I learned out on the athletic field and how to step up, how to speak, teamwork, reliance-

Keehan: 1,000%. Yep. 1,000%. Totally.

Judge: Absolutely.

Keehan: This is great. I mean, you’ve covered a lot of ground there in the ‘90s. I’m thinking it might be helpful, Janet, if you could just kind of briefly clarify the enforcement structure of Title IX athletics, since it can be a bit confusing. Can you just explain the difference between a Title IX lawsuit vs. a Title IX complaint, which is what I did against my high school, and who can take these different actions?

Judge: Absolutely. Let me start by saying that the NCAA does not enforce Title IX, right? That’s a pretty important baseline. Although Dr. Amy Wilson, the [NCAA’s] Managing Director of Inclusion, is among the most knowledgeable and supportive proponents of the fair application of the law and equitable treatment of girls and women in sport. I’d also direct people, she’s the primary author of the NCAA’s 2022 State of Women in College Sports Report. It’s the primary sources of some of the statistics I’m sharing with you today. I encourage everybody to look at that. It’s a great document. It’s just recently been out there. It’s probably the most up to date document, and it’s publicly available on their website.

Now, the NCAA does have rules that require institutions to evaluate their equity. There’s recently passed legislation at the Division I level that’s requiring schools to do self-assessments every so many years. There’s also legislation at Division II and Division III level that it requires schools to check in on their athletic equity. But to be clear, that’s institution member efforts to evaluate their own equity on their own campus and the NCAA is not evaluating those, does not require them to be submitted. They just require schools to state that they’ve done them.

But let’s get back to the Title IX enforcement. I always love to talk about separation of power. Remember, Title IX is the federal law. It was passed by Congress, so the legislative branch. It’s forced by the federal government, which is the executive branch and OCR, and interpreted by the courts, the judicial branch. It’s a Spending Clause statute, meaning that an exchange for funding the federal government provides the schools, the schools promise not to discriminate on the basis of sex and education programs and activities, right? The Department of Education’s Office for Civil Rights, OCR, is the administrative agency charged with enforcement and oversight. It promulgates proposed regulations, administrative guidance, and is the body responsible for administrative enforcement.

Under the administrative enforcement rubric, the OCR will notify schools of allegations of noncompliance, investigate allegations of noncompliance, and work with schools to resolve complaints or to remedy findings of noncompliance. Individuals — like Alyssa — can file complaints with Office for Civil Rights, and then the Office for Civil Rights effectively takes over the investigation of the claim. Now, OCR may also conduct compliance reviews, meaning OCR has the power to review a school’s compliance on its own without any complaint pending. And then finally, where schools are not either willing to resolve a case to OCR’s satisfaction or OCR just can’t move a case forward where they have findings of noncompliance, they can seek to either defund the school, right?

It’s a Spending Clause statute. They give federal funding, so they can say, “Hey, you’ve not upheld your end of the deal. Give us our funding back.” In 50 years, that’s never happened, or they can refer the case to the Department of Justice, where they can take judicial steps to enforce the law. Now, in addition, on the judicial side, the courts have held that individuals withstanding, meaning those people who can show that they’re individually harmed by schools’ alleged noncompliance, they can go directly to court to seek remedy. We’ve seen an increase in litigation associated with sport eliminations that took place after the onset of the pandemic, and some of these cases are continuing on in litigation.

Now, why have people chosen to go to the courts instead of OCR? Well, there is a feeling that OCR has an obligation to work with schools to achieve compliance, which is true. That’s how the regulatory scheme is set up. There’s a feeling that maybe that OCR doesn’t move cases along quickly enough. People who are filing complaints oftentimes are the athletes and they only have a short window of time to be able to use their athletics eligibility. We have seen more and more people go directly to court. Unlike other civil rights law, there’s no exhaustion of administrative remedies, meaning that people do not have to go to OCR first. They can go directly to court to seek redress.

Now, recent Supreme Court cases have placed limitations on damages successful plaintiffs may recover in these cases. And more specifically, there’s no ability to recover punitive or punishment damages. A recent Supreme Court case states that there’s no emotional distress damages associated with certain civil rights laws, including Title IX. There are actual damages, obviously. What does it mean to have your athletic experience denied or substantially limited? Attorney’s fees are available in cases where Title IX noncompliance is found, which is why we have seen some attorneys very active in this space. They’re able to recover their attorney’s fees where they are successful in their cases.

Keehan: That’s a great explanation that you just gave I think on what can be very confusing, the enforcement aspects of Title IX. Taking us back to our discussion with where we’ve been with Title IX, you explained, I think, why we saw this great growth in enforcement of Title IX athletics in the 1990s. And then, of course, the establishment of the famous three-part tests. What happened in the 2000s? Were there other important milestones that occurred?

Judge: Well, in the 2000s, we had President Bush appointed a Commission on Opportunity in Athletics in 2002 to review the law and its application. Now, I think when that commission was appointed, there was real concern among advocates for Title IX that this was sort of veiled attempt to weaken the law. The commission met regularly, have internal disagreements. There were a lot of interesting discussion points about how if Title IX isn’t enforced the way it’s currently enforced, what’s another way to measure equity, and all those kinds of different discussions that went on. They held public hearings across the country. But at the end of the day, in 2003, they just said, “Hey, Title IX is not broken. It’s fine. It’s going to continue on the way it is.”

That said, two years later, we had some very controversial OCR guidance issued that stalled the growth of participation opportunities. I think many people would say it basically said that schools could just do email surveys asking about participation opportunities. Where people chose not to even respond to the surveys, that schools could count that non-response as an affirmative statement of non-interest in participating in sports. It was a really not acceptable way to conduct surveys. I think for the most part, people were very concerned about the application of the 2005 guidance. That guidance was eventually rescinded in 2010 under the Obama administration.

But throughout the 2000s, both male and female student-athletes continued to set participation records. Throughout the 2000s, participation rates for male student-athletes slightly outpaced those for females. From 2002 to 2020, according to the NCAA, men gained nearly 73,000 participation opportunities, while women gained over 67,000 opportunities.

Keehan: Wow, Janet, you’ve I think provided us a really great overview of Title IX here from its passage in 1972, which was a bit of a slow start, through the Grove City Supreme Court decision, which really kicked off its broader application to all educational institutions receiving federal funds, and then of course, to the explosion of enforcement and guidance by the Department of Education in the 1990s, and then the solidification of that enforcement perspective through a number of challenges in the early 2000s. This has just, I think, been very helpful perspective and context for Title IX. As we near the present day, what significant things have happened with Title IX athletics over the last 10 years?

Judge: Well, there’s been explosion of support for women’s sports, growth of women’s professional sports, charismatic and outspoken leaders, both athletes themselves and leaders within the collegiate sport context. We have leadership within the WNBA and the National Women’s Soccer League. We have the women’s national soccer team very much in the space talking about equal pay and equal treatment for women. We have female student-athletes across all NCAA divisions are more racially and ethnically diverse in 2019-20 than we had even 10 years earlier. More than 32% of female college athletes are minority women.

That’s, according to the NCAA, an increase of more than nine percentage points during the previous two decades.

2020 data shows that Division I has the most diversity among female student-athletes, followed by Division II and Division III. We are seeing just more confidence among those who are participating in sports, men and women, to talk about equity in sport, and we’re seeing much more allyship among male athletes in the support of female athletic experience.

Keehan: Can you talk a little bit more about the current period that we’re in now with Title IX? Specifically, where are we going with Title IX enforcement? For the institutions listening, what areas would you tell them to watch?

Judge: I often think when I’m giving advice, what would I want to hear if I were the person listening? I think at the baseline, every school needs to know what their equity stance is right now. One of the easiest tests and the most compelling tests is a test that was articulated by the NCAA’s Gender Equity Task Force in 1992: Would the men’s teams be satisfied with the participation opportunities, athletics related financial aid and treatment provided to the women’s teams and vice versa? That challenges assumptions around all the things that go into sport. I mean, we have a real kind of collision point in college sports between market and fan interest and assumptions and stereotypical assumptions about that and a very baseline civil rights law centered around education opportunities.

I think it’s really important to go back to the roots and say, “What are the compliance areas? What is the mission of our institution? How are we treating our male and female students at the collegiate level, the high school level, and elementary school level? Are we truly invested in education through sport?”

We have a lot of litigation going on right now about whether or not student-athletes at certain levels are employees or student-athletes and where are we moving forward with those cases. We have litigation pending around the NLRA (the National Labor Relations Act), wage and hour employment, NIL, and a variety of other contexts as well. I think at a baseline, schools need to very much understand what Title IX is all about.

We have tremendous amount of miscommunication and misunderstanding about what the law requires,  and as a result there’s an uneven and inequitable application of the law across institutions. I think for the most part, if I were sitting on a college campus, I’d want to know, “What’s our compliance stance? If we’re not in compliance, what are we doing to move forward toward compliance? Do the leaders at our institution understand where we stand? And what is our institutional commitment to athletics?”

Keehan: Janet, as someone who’s really dedicated their career here to Title IX athletics, what do you see as the biggest challenges facing gender equity in athletics?

Judge: Misinformation, I think, is the baseline. Somebody had just sent me an article last night where somebody who had been writing about the 50th anniversary of Title IX had right in the article that the laundry list was no longer a part of Title IX. That it somehow has been rescinded, which is not the case at all. And that’s an article that’s going out to many, many people. Really, really upsetting. We have some other reporting that is applying inappropriate tests in the scholarship context or going after schools for reporting male practice players on EADA statistics without diving a little deeper and understanding that schools are only doing that because they’re told to do that by the Department of Education when they fill out those reports and if they don’t do so, they’ll get a call telling them to put those male practice players back in their statistics. There’s no school out there that I know that is counting male practice players on women’s teams as females for purposes of Title IX compliance.

I think we all have a collective responsibility to really educate ourselves around what Title IX is all about, especially if we’re putting out information that’s being consumed by our student-athletes, as well as the general public. I think we have to be careful about allowing the market to really drive what we’re doing in sports. I think we would not allow outside donors or outside market forces necessarily to drive the provision of other educational opportunities in other areas, granted in the athletics context, they are sex segregated. We run into some difficulties there because people feel very, very attached to maybe the sport they played. We have, quite frankly, because of the development of college sports and the fact that women’s sports were added much later than men’s sports, a much greater donor base on the men’s sports side as compared to the women’s side.

Now, one of the miscommunications around Title IX is that outside dollars don’t count. If people are participating in unbelievable facilities on the men’s side as compared to the women’s side, but all those facilities were the product of outside dollars coming in and shouldn’t count, that’s just not how Title IX is applied.

The reality is any dollars that are donated to an institution and go through the institution and are used to the benefit of men and women participating in sports count. In that way, we have to make sure that we’re providing equity. Now, Title IX’s not about the dollars, per se. It’s about the goods and services that are the result of those dollars. But to be clear, where there are significant disparities, the government has the right to go back and look at the budgeting process. And that’s important. We’re having an escalation of dollars in sports at the Division I level in particular, where we’re having unbelievable facilities built for some sports but not for others, amenities, support services, charter flights, you name it.

And then we will have other sports at those same institutions really sort of struggling. We have some real spending gaps as well, right? At the NCAA Division I level, we’re finding that Division I institutions in the aggregate are spending about twice as much on men’s sports as they are in women’s sports. Division II and Division III institutions, the average gap is about 8%, again favoring men’s programs overall. There are many non-discriminatory reasons for differences in spending, right? The cost of what it means to run a football game as compared to running a tennis match. All those kinds of things are figured into those dollar amounts. But for the most part, I think we really need to be thinking about the emphasis and where we’re going on sports.

We also have to think about some of the things I talked about before, the availability of participation opportunities, leadership opportunities, and other things for women and women of color. For example, women of color in leadership positions, 31% of the conference commissioners are women and only 4% are women of color. Women hold approximately 25% of all NCAA head coaching and Athletics Director positions. In 2019-20, 16% of female head coaches of women’s teams and 16% of female Athletic Directors only were minority women. Now, these percentages have increased slightly from five years ago, but we’re hearing loud and clear that representation matters.

Athletes are asking for women and women in color in all kinds of positions, athletics training, strength and conditioning, sports medicine, sports psychology, and other leadership positions within athletics. And we need to think about what’s going on in the pipeline. We also have the other piece. Very qualified men doing great things hold 59% of the head coaching positions for women’s teams. But conversely, women hold only 6% of the head coaching positions of men’s teams. And that’s 6% more than was the case in 1972 when Title IX was passed.

Keehan: Well, we are just about out of time, but I’ve got one more question for you. Janet, can you summarize what the gender equity in athletics landscape looks like today in terms of female and male participation vs. what it looked like in 1972 when the law passed? What kind of a difference has Title IX made?

Judge: Well, again, according to the NCAA, girls’ high school participation was 294,000 in 1972. The most recent data available from the National Federation of High Schools puts that number at 3.4 million.

According to the NCAA, when Title IX was passed, approximately 30,000 women were participating in college sports. In 2020, the NCAA puts that number at 221,000.

Now, compare those high school numbers against those college numbers, especially when people are saying that girls and women are just not as interested in sports. They are.

Studies show that girls and women are very interested in participating in athletics and that they benefit significantly from their athletics participation opportunities. That’s why I’m so excited to be here talking with you, Alyssa, about this.

Keehan: Well, Janet, this has, I mean, seriously, been so great. I just want to thank you for joining us for part 1 of our two-part series on “Title IX at 50.” Just wonderful to have you.

Judge: Well, thanks to you, Alyssa. I know you have a passion for Title IX and understand the value of athletics participation for girls and boys, women and men. Let me be really clear: Title IX applies, those protections apply to boys and men as much as to girls and women. There have been cases where male athletes denied participation opportunities have successfully relied on Title IX to seek redress. I really do appreciate United Educators for taking the time to honor this profound civil rights law that has done so much for so many, including me, and as we just said, including you also.

Keehan: Well, thanks again. For our listeners, please be sure to download Part 2 in our series of “Title IX at 50,” which will cover the law’s impact on student sexual harassment. I also just want to let our listeners know that in addition to this topic, you can find other podcasts and risk management resources on our website, www.ue.org. Just encourage you to go check it out if you haven’t already. From United Educators Insurance, this is the Prevention and Protection Podcast.