Title IX is 49 today

[Lindsay]

https://www.bc.edu/bc-web/bcnews/campus-community/alumni/power-play.html

Title IX turns 49 today and I wanted to acknowledge it on the college hockey board. Above I linked an origin story of the BC Women’s hockey program, which began in 1973, 1 year after Title IX. I think TitleIXHockey (the poster) has a list of when other hockey programs started.... would be neat to see.

I couldn’t tell you when I learned about Title IX, only that it was well after I had benefited from it. I remember reading Pat Summitt describe the early conditions her Tennessee Lady Vols basketball team traveled in. It was either before Title ix, or when it was brand new... they slept on the floor of a gym with no air conditioning! Compare that to the hotels Women’s athletes sleep in now. You just can’t. We are so lucky.

Passing Title ix took the work of many people, here is a story about the “godmother” of Title IX, Bernice Sandler. I like this story because it makes clear passing it wasn’t even about athletics, but rather gaining employment equality:

https://www.npr.org/2019/01/10/6835...title-ix-achieved-landmark-discrimination-ban


Happy anniversary to Title ix and fist bumps to all people who have worked to build the presence of women’s hockey at all levels, especially college.

 

[Cornholio]

The significance of Title IX and the impact on making opportunities available for young girls and women in sports cannot be overs-tressed. I am not the impact on society at large is not fully appreciated by a lot. Playing competitive sports and trying to reach as high as you abilities allow trains young boys and girls skills that are applied in all aspects in their life. Without Title IX, the girls would not have the opportunities to play in college they have today, and that takes away a goal for girls to try to reach.

I wonder now how the supreme court decision will affect women's sports going forward. A lot of the talk now is about the "Power 5" conferences splitting from the NCAA. What happens say if a Wisconsin pulls their men's football and basketball programs out of the NCAA, and run that as an "independent business", complete with salaries for their players. Where does the funding for say the women's hockey team come from? Does everyone now follow the "ivy" model to contain costs? I fear a lot of "unintended consequences" of this decision that while it may benefit say 30 or so of the top football playing schools, I think it will limit opportunities for both men and women going forward in every other sport and non top-30 football schools.

 

[ARM]

I fear a lot of "unintended consequences" of this decision that while it may benefit say 30 or so of the top football playing schools, I think it will limit opportunities for both men and women going forward in every other sport and non top-30 football schools.

Maybe, but while there are aspects of the evolution of college athletics that have been very positive, at the top end, it is out of control. When I was very young, even professional teams were mainly looking for a venue to play with an appropriate capacity. By the time I left college, that had evolved so that both pro and college teams wanted state-of-the-art stadiums and arenas in order to compete. Now, even the practice facilities are part of the arms race for the Power 5 teams, while tuition for students has been increasing at a rate similar to the growth of athletic department budgets.

Will change be beneficial? I'm sure that there will be some negatives that will leave us looking back fondly at the way things once were. However, I don't think it would be the worst thing if there was movement back toward the early days of college athletics when it was viewed as an extra-curricular activity for students whose goal was to earn a degree, not their primary reason for heading to a university in the first place. I'm not naive enough to think that it will return to that for Alabama football or Kentucky basketball, but do community colleges really need to be as concerned with winning as they are? And at the prep level, if a coach can teach kids how to play the sport and be decent human beings, that coach shouldn't have to worry about losing the job if they are not winning the conference championship every season.

But to Lindsay's point, yes, it is great that women can now be part of this madness, instead of just watching it unfold from the bleachers -- or make that luxury boxes.

 

[Lindsay]

Cornholio- good points. You are not alone with these concerns. I’m not sure how the Alston decision will impact women’s opportunities and men’s non revenue sport opportunities, but I believe focus needs to be on striving for gender equality, but doing it in a way that is ethical or at least legal.

And although Alston was about not capping education benefits given to athletes, it seems we are moving in a direction that acknowledges it’s not right for the underpaid football and basketball players at a few schools to fund million dollar salaries of coaches, athletic directors, ncaa people, capital projects and yes women’s and men’s sports in non revenue sports. Or more succinctly: price fixing is illegal. so we’ll see what happens. All very tricky, while the players are the talent what we are seeing with the nw is that the infrastructure is just as important as the talent and talent isn’t everything.

So while the ncaa players are the talent the infrastructure (coaches, media, conference histories, broadcasting) are a huge part of the value of the enterprise too.

As it relates to women’s college sports Something that is encouraging to me at least, is the knowledge that most schools lose money on their athletic departments already and still choose to sponsor programs, even if in a cost containment environment. And even in that cost containment environment, it’s still pretty good opportunities, players get treated pretty well. So I don’t know these schools will even ever need to pay players beyond an athletic scholarship, and presumably life will go on.

Speaking of title ix in broad terms, the Alston decision shouldn’t impact high school sports, or gender discrimination in hiring at places that receive federal funding, which are extremely important pieces.

a glass half full perspective, that is hopefully not just wishful thinking. There are always worries surrounding title ix, and endless work to do, and in part that is why it is worth pausing and acknowledging what this legislation has done in its 49 years.

 

[Lindsay]

But to Lindsay's point, yes, it is great that women can now be part of this madness, instead of just watching it unfold from the bleachers -- or make that luxury boxes.

The value for women is not in the madness of it, for me. It’s being in an environment where women are celebrated, deemed worthy of time and investment, and oh by the way you come out the other side with a degree, and for ice hockey players having traveled around a bit and briefly seen the northeast US and Midwest a bit, and for four years you get to play with 20ish people as talented and committed to the sport as you are.

Just read the BC article I posted. It’s about the happiness of being part of something and the fun of playing and representing your school.

And those experiences have a tremendous impact on young women, and help them when they join the real world. That’s not madness, it’s just how it should be!

I’ve advocated for common sense spending numerous times on this board. The $50 million dollar basketball facility at RMU that probably cost them their hockey programs, ugh.

Just to be clear about how I feel about title ix, it’s value is not in the madness.

edit: and read the Bernice Sandler article. She had a PhD and couldn’t get a job because she was a woman. And she brilliantly figured out that’s illegal and worked to change it. That’s why title ix is great.

 

[ARM]

Just to be clear about how I feel about title ix, it’s value is not in the madness.

I totally agree with you. I am glad that women have the same opportunities to participate. Or that it is at least a stated goal, although many try to work around Title IX rather than embrace the spirit of it.

My concern revolves around the world where someone who can make a three-point shot (not particularly useful in everyday life) is celebrated more than someone who can discover a vaccine or design a home. As a society, we are focusing too much on dessert while often ignoring the meal, and that won't be healthy in the long run.

 

[Lindsay]

I totally agree with you. I am glad that women have the same opportunities to participate. Or that it is at least a stated goal, although many try to work around Title IX rather than embrace the spirit of it.

My concern revolves around the world where someone who can make a three-point shot (not particularly useful in everyday life) is celebrated more than someone who can discover a vaccine or design a home. As a society, we are focusing too much on dessert while often ignoring the meal, and that won't be healthy in the long run.

gotcha. Yes that is also a concern. So much to navigate, and interesting times lie ahead for sure.

 

[SJHovey]

The 8th Circuit Court of Appeals reinstates the lawsuit against UND relating to the cutting of women's hockey.

https://ecf.ca8.uscourts.gov/opndir/21/08/192517P.pdf

 

[Scott_TG]

The 8th Circuit Court of Appeals reinstates the lawsuit against UND relating to the cutting of women's hockey.

https://ecf.ca8.uscourts.gov/opndir/21/08/192517P.pdf

TL;DR for those interested: The court of appeals ruled that the lower court incorrectly dismissed because they applied a compliance measure of only one aspect of Title IX compliance (Levels of Competition) and ignored the other two aspects (Selection of Sports and Determination of Athletic Interests and Abilities). The UND players who are the plaintiffs had the lawsuit successfully reinstated arguing that the Title IX violation committed by UND relates to Selection of Sports.

My observations from a deeper dive:

The former UND players appear to be arguing their case using an often-ignored mandate in the 1979 Policy Interpretation of Title IX: the "separate-teams mandate". Under Selection of Sports in Title IX, when a school doesn't provide one gender a team it does for the other, the school must allow the other gender to try out for the team unless it's a contact sport in which case they don't have to allow the tryouts (before anyone asks, ice hockey is specifically labeled a contact sport for this purpose).

The relevant language:

Selection of Sports provision:

In the selection of sports, the regulation does not require institutions to integrate their teams nor to provide the same choice of sports to men and women. However, where an institution sponsors a team in a particular sport for members of one sex, it may be required either to permit the excluded sex to try out for the team or to sponsor a separate team for the previously excluded sex.

Effective Accommodation for Contact Sports

Effective accommodation means that if an institution sponsors a team for members of one sex in a contact sport, it must do so for members of the other sex under the following circumstances:
(1) The opportunities for members of the excluded sex have historically been limited; and
(2) There is sufficient interest and ability among the members of the excluded sex to sustain a viable team and a reasonable expectation of intercollegiate competition for that team.

The above seems pretty cut and dry and a win the former UND players, but one can see in this opinion that this has never been enforced directly in the history of Title IX.

Both the majority opinion and two concurring opinions seem to imply they believe this situation has arisen because while the original statute was written in 1972 with most of the implementation first written in 1979, most of the guidance from the US Dept of Education since has focused on the three-part test for compliance with the Levels of Competition aspect. The majority opinion and first concurrence believe that the entire 1979 statute should have been considered and should be considered in the reinstated lawsuit.

Judge Steven Colloton (W Bush appointee), who wrote the second concurring opinion, has a different take. Colloton points out that given that emphasis only on the three-part test on the part of DoE it wouldn't be unreasonable for an institution's Athletic Dept to think they're compliant as long as they pass the three-part test for Levels of Competition. Judge Colloton lays out some history of all the times the three-part test was clarified and openly wonders if the DoE has abandoned all other criteria outside the three-part test. He points out when referring to the separate-teams mandate the players are citing in their suit: "This 1979 separate-teams mandate has largely disappeared from public view since it was issued. No court has relied on the mandate to find liability under Title IX."

Colloton also points out that the Department of Education has not filed a brief in this case clarifying if they still consider other standards in the 1979 Interpretation of Title IX live. He implies that may be because doing so "also would require the Department to accept accountability for the consequences of requiring an institution to sponsor high-dollar programs like women’s ice hockey, women’s football, or women’s baseball, at the potential expense of other women’s teams like swimming, rowing, gymnastics, softball, or volleyball."

My (non-lawyer) opinion on possible outcomes:

A) The former UND players successfully argue in the lower court the Separate-Teams Mandate of the Selection of Sports provisions and they win a judgment. UND will then appeal that they had no notice of violation of this mandate from the US DOE (as Colloton suggests they could in his concurrence) and it continues.

B) UND successfully argues on their own that they were in compliance with Title IX because DoE has never enforced the other provisions.

C) The DoE puts their thumb on the scale for either the players or UND by issuing a brief in this case affirming whether or not the Selection of Sports and its Separate-Teams mandate is enforceable or dead letter.. Declaring it dead letter makes them look like idiots for never saying so explicitly. Enforcing it seems correct as it is on the books, but doing so could disrupt a lot of athletic departments at a time they're still trying to process what's changed since NCAA vs Alston came down earlier this year.

D) Both sides settle.

 

[Steamboat]

The 8th Circuit Court of Appeals reinstates the lawsuit against UND relating to the cutting of women's hockey.

https://ecf.ca8.uscourts.gov/opndir/21/08/192517P.pdf

That is really a mouthful, 24 pages to be exact. Thanks for posting this link. I think a lot of people on this forum could benefit by reading it in its entirety.

 

[The Sicatoka]

Scott_TG

I'm no lawyer, but when I tried to read that my take was a bit of a scolding of DoEd for not clarifying that 1979 was still valid and just wholly focusing on "three-prong".

And this caught my eye also:

... clarifying if they still consider other standards in the 1979 Interpretation of Title IX live. He implies that may be because doing so "also would require the Department to accept accountability for the consequences of requiring an institution to sponsor high-dollar programs ...

DoEd to "accept accountability for the consequences". Is that saying DoEd would have to fund programs they mandate be reinstated?


This Appeals decision really puts schools that have been 100% focused on "three prong" compliance and nothing more in a bit of a bind should DoEd say 1979 is still valid and should be considered. This could be as disruptive to college sports as (as you say) Alston or even the shockwaves of OU/UT to the SEC.

 

[Lindsay]

Kirsten Whelan of Victory Press wrote about this a few years ago, how the argument is not relying on the 3 prong test:

https://victorypress.org/2018/06/15...ens-ice-hockey/amp/?__twitter_impression=true

She wrote a follow up yesterday:

https://victorypress.org/2021/08/11...uits-dismissal/amp/?__twitter_impression=true


Whelan is either a law student or maybe a lawyer by now, in Canada.

 

[Scott_TG]

Scott_TG

I'm no lawyer, but when I tried to read that my take was a bit of a scolding of DoEd for not clarifying that 1979 was still valid and just wholly focusing on "three-prong".

And this caught my eye also:


DoEd to "accept accountability for the consequences". Is that saying DoEd would have to fund programs they mandate be reinstated?


This Appeals decision really puts schools that have been 100% focused on "three prong" compliance and nothing more in a bit of a bind should DoEd say 1979 is still valid and should be considered. This could be as disruptive to college sports as (as you say) Alston or even the shockwaves of OU/UT to the SEC.

The district court of appeals is definitely not pleased with Dept of Education.

I don't think the court can order Dept of Eduction to fund programs that are reinstated. I think that line was the judge opining that the Dept of Education would be the one to shoulder the blame for the fallout of what would in practice be a sudden reversal of course if schools have to start enforcing something that has not been a factor ever.

 

[Rightnut]

The district court of appeals is definitely not pleased with Dept of Education.

I don't think the court can order Dept of Eduction to fund programs that are reinstated. I think that line was the judge opining that the Dept of Education would be the one to shoulder the blame for the fallout of what would in practice be a sudden reversal of course if schools have to start enforcing something that has not been a factor ever.

If the students win on the contact sports aspect of the regulation - it sounds like it would force Michigan, Michigan State and any other school with a men's team but no women's team to add a women's team?

 

[Scott_TG]

If the students win on the contact sports aspect of the regulation - it sounds like it would force Michigan, Michigan State and any other school with a men's team but no women's team to add a women's team?

If they win on Selection of Sports, for other schools to be forced to sponsor a women's team there would need to be enough women's players who could be competitive within DI conference on the campuses of those schools.

 

[The Sicatoka]

The district court of appeals is definitely not pleased with Dept of Education.

I don't think the court can order Dept of Eduction to fund programs that are reinstated. I think that line was the judge opining that the Dept of Education would be the one to shoulder the blame for the fallout of what would in practice be a sudden reversal of course if schools have to start enforcing something that has not been a factor ever.

So I did read a bit of a scolding correctly.

The bolded portion, is that the judge laying the groundwork for "don't blame me, I just found the mistake, DoEd made it"?

 

[The Sicatoka]

If they win on Selection of Sports, for other schools to be forced to sponsor a women's team there would need to be enough women's players who could be competitive within DI conference on the campuses of those schools.

On a B1G campus, there have to be females who played hockey in HS who'd have interest.
UND would be impacted as the named in the suit.

My question always comes back to: Who's paying the bill?

 

[Rightnut]

If they win on Selection of Sports, for other schools to be forced to sponsor a women's team there would need to be enough women's players who could be competitive within DI conference on the campuses of those schools.

Does that mean enough players on campus at the moment any final decision was rendered? That would seem to be an arbitrary date. No doubt Michigan or its ilk could move a club team to D1 but what is "competitive" and who decides? There are current D1 teams that are arguable not competitive.

 

[Scott_TG]

On a B1G campus, there have to be females who played hockey in HS who'd have interest.
UND would be impacted as the named in the suit.

My question always comes back to: Who's paying the bill?

Until there is a change in policy or statute it would be the institution having to pay for it. Whether they cut other sports, increase the athletics budget, etc. This is what Judge Colloton meant when he wrote "also would require the Department to accept accountability for the consequences of requiring an institution to sponsor high-dollar programs". This will be quite the ruckus in athletic departments if they start receiving petitions to create D1 teams under the Selection of Sports clause. He is implying this is their mess and they should be the ones having to help solve such a mess, but I don't know what mechanism he or any judge has to make them...

Does that mean enough players on campus at the moment any final decision was rendered? That would seem to be an arbitrary date. No doubt Michigan or its ilk could move a club team to D1 but what is "competitive" and who decides? There are current D1 teams that are arguable not competitive.

I interpret it to mean at the time a decision is made by a school or there is some sort of petition to the school from students who want to form a team. It would apply to UND because they certainly had enough players at the time they cut the program.

For future cases, I would think there would need to be a group of students petitioning for a female team where there is only a male one or a male team where there is only a female team. How else could institutions otherwise be aware there are enough criteria to need a new team under this rule? For example, MSU has two women's club teams, ACHA DI and DII. If the Separate-Teams Mandate starts getting enforced they would have a good case.

As for being "competitive" the clause is actually "expectation of intercollegiate competition for that team", so that may just mean that they have enough teams to play not that they would even win.