More than thirty years have passed since Congress enacted Title IX, the statute prohibiting sex discrimination by schools, colleges, and universities that receive federal funding. In that time, Congress has confirmed -and reconfirmed- the statute's application to college athletic programs, and the Supreme Court has strengthened the statute's enforcement by construing a private right of action for both injunctive relief and, in certain cases, money damages. Bolstered by these measures, Title IX is duly credited for increasing the number of athletic opportunities for women and girls. But at the college level, female athletes still have far fewer opportunities to participate in athletics relative to their male peers. At most colleges and universities, the percentage of student athletes who are female is lower than the percentage of female college students. One reason for this is that Title IX and its implementing regulations do not mandate that universities attain substantial proportionality. In fact, the regulatory compliance policy that the Office for Civil Rights ("OCR") has administered since 1979 allows for three separate and alternative measures (or "prongs") for complying with Title IX. Universities' efforts to attain compliance under the proportionality prong are often stymied by budget constraints, perceived or otherwise, that prevent universities from achieving proportionality by simply adding opportunities for women. And while universities could alternatively attain proportionality by capping or reducing athletic opportunities for men, this approach is unpopular among male athletes, their coaches, and their supporters. The Author discusses the current state of the law and presents proposals for reform.
91 Iowa L. Rev. 821 (2006)