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Education

June 23, 2020

Title IX Celebrates 48th Anniversary Amidst Pandemic, Economic, and Societal Challenges

By Daniel A. Cohen, Alexis F. Trumble

June 23, 2020, marks the 48th anniversary of the enactment of Title IX, the comprehensive federal law prohibiting discrimination on the basis of sex in education programs that receive federal funding.

Nearly 50 years after its passage, Title IX has expanded access for women to postsecondary education and STEM fields, protected LGBTQ+ students from discrimination based on their gender identity and expression, and ensured equal access to a myriad of other educational benefits and opportunities. The landmark legislation has galvanized a national discussion about preventing and addressing sexual misconduct, as well as paved the way for women’s participation and success in high school and collegiate athletics. Participation in sports is tied to success both on and off the field for female athletes; indeed, a notable Ernst & Young and espnW study found that 94% of female corporate-suite executives played sports, and 52% of them played sports at the college level.

Although this year’s anniversary celebration takes place against the backdrop of the global COVID-19 public health crisis and other challenges, Title IX’s gender equity provisions are just as important and impactful today as they were 48 years ago.

With society’s renewed focus on equity, here are a few notable Title IX markers on today’s anniversary:

  1. National Athletics Compliance Statistics

Title IX covers every aspect of the collegiate athletics experience. Title IX’s equity metrics are divided into thirteen program areas to cover such things as equitable treatment and the equitable provision of athletic financial aid, but the most recognized program area involves the provision of equitable athletics participation opportunities.  

While schools have three alternative paths to demonstrate they are providing equitable athletics participation opportunities, the first path (“prong one”) is best known in the public sphere because it is objectively measurable and because colleges are required to publicly self-report their prong one compliance statistics every year. A school complies with prong one if it provides athletics participation opportunities for female and male students in a ratio that is “substantially proportionate” to their full-time undergraduate enrollment ratio.

Although female athletics participation opportunities have increased by more than 136,000 in the last three decades (with more than 38,000 new opportunities having been created in the last ten years), the self-reported data from 1,078 NCAA schools still showed substantial prong one disparities in 2018-2019:

  • Only 11.5% of NCAA schools were within 2% of proportionality.
  • Female student-athletes were under-represented by more than 10% at over half of all NCAA schools.

Of course, schools may demonstrate compliance under the alternative second and third prongs, but activist groups and media organizations pay close attention to prong one compliance statistics. It does not appear that the COVID-19 pandemic has slowed or halted efforts to expose and investigate proportionality gaps in efforts to increase female athletics participation opportunities.

  1. Recent Athletics Developments

With new name, image, and likeness (“NIL”) legislation on the way, endorsement deals and other monetization opportunities present new economic possibilities that were previously unavailable to female college athletes. Initial projections placed five female athletes on the list of the top-ten student-athletes with the most endorsement-monetization potential. Women take 13 of the top 20 spots; five of the top 12 are gymnasts. Indeed, in a world dominated by social media and online influencers, athletes with large social followings and viral content may find immense success in leveraging their personal brands to obtain lucrative sponsorships and endorsements.

Additionally, female student-athletes have more varied participation opportunities than they did in generations past. All three NCAA divisions, for example, recently voted to adopt acrobatics and tumbling as an emerging sport. A hybrid between gymnastics and competitive cheerleading, acrobatics and tumbling provides potential NCAA competitive opportunities for what may be the largest underserved female athlete population in the country. At the high school varsity level in 2018-2019, there were more than 160,000 female competitive cheerleaders on the mat in gyms and arenas across the nation, according to the National Federation of State High School Associations. Continued expansion of NCAA offerings for female student-athletes is a direct result of Title IX’s passage and enforcement; the addition of new and emerging sports like A&T signals a commitment to continuing the momentum of female inclusion in collegiate athletics.

  1. COVID-19 Cost-Containment Measures

Through the current economic pressures caused by the pandemic, there is a critical need for continued attention to and emphasis on gender equity.

When making COVID-driven decisions, such as decreasing travel expenses, eliminating support services, reducing staffs or salaries, and implementing other cost-containment measures, athletics administrators should carefully consider solutions that apply equitably to men’s and women’s programs. Cost reductions may be necessary consequences of reduced higher education budgets, but Title IX still requires equity in the treatment of men’s and women’s athletics programs.

  1. New Sexual Misconduct Regulations

In addition to Title IX’s implications for athletics, its impact on addressing sexual misconduct on campus cannot be overstated. The statistics reflecting the incidence of sexual assault and other forms of gendered violence on college campuses are staggering – reports indicate that between one in four and one in five women will be a victim of sexual assault in some form before graduation. Colleges and universities have come under fire for their handling of sexual misconduct cases, as allegations of failed investigations and due process violations capture media attention and court calendars.

As Nelson Mullins previously reported, the U.S. Department of Education released new Title IX sexual harassment regulations on May 6, 2020, which significantly expand and define educational institutions’ regulatory obligations for responding to and addressing alleged sexual harassment within education programs and activities.

As a result, schools are racing to draft new and compliant Title IX policies and procedures, hire additional staff members into Title IX offices, build pseudo-judicial ecosystems on campus, and educate members of their campus communities about the new regulations. In the midst of a global pandemic, implementing the onerous and controversial regulations before the August 14, 2020 effective date underscores the importance of comprehensive training for Title IX coordinators, investigators, adjudicators, and others involved in the Title IX process. Additionally, the new regulations have been criticized for their potential to chill the reporting of sexual misconduct due to their imposing procedural requirements; schools should ensure that their communication strategies encourage victims of any gender to come forward and report sexual assault or gendered violence.

To view the Nelson Mullins Education Team's May 11 initial assessment of the regulations, please click here, and to view our May 20 complimentary webinar during which we discussed the regulations and related strategies for education institutions in more detail, we invite you to view the webinar recording here.

Conclusion

Title IX’s legacy lives on nearly 50 years after it was enacted. From the classroom to the courtroom and beyond, students of all genders have benefitted from Title IX’s prohibition on sex discrimination in education programs and activities.

The Nelson Mullins Education Team includes attorneys whose practices focus almost exclusively on Title IX matters. If you have questions or would like to discuss your school’s compliance with Title IX’s athletics or sexual misconduct requirements, please contact Dan Cohen, Lexi Trumble, or any member of the Education Team.



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