Constitutional Requirements Governing American Education
CONSTITUTIONAL REQUIREMENTS GOVERNING AMERICAN EDUCATION
The right to a free public education is found in the various state constitutions and not in the federal constitution. Every state has a provision in its constitution, commonly called the "education article," that guarantees some form of free public education, usually through the twelfth grade. The federal constitution, on the other hand, contains no such guarantee. In San Antonio Independent School District v. Rodriquez, the U.S. Supreme Court in 1973 held that education is not a "fundamental right" under the U.S. Constitution. Thus, as a matter of constitutional law, the founding fathers left it to the states to decide whether to provide an education or not and, if deciding to provide one, determine at what level of quality.
Not only does the federal constitution confer no right to education, it does not even explicitly empower the U.S. Congress to legislate on the subject. Most federal education legislation is therefore enacted under the "spending clause" of the Constitution, which gives Congress the authority to tax and spend for the general welfare. Since federal grants to the states may be conditioned upon the state's adoption of certain legal and regulatory structures, the federal government has been able to exercise substantial authority over K–12 education policy. For example, in South Dakota v. Dole, the Supreme Court in 1987 upheld a federal law withholding a percentage of federal highway funds from any state that declined to raise its minimum drinking age to twenty-one. This kind of carrot-and-stick approach underlies much federal education law, from the setting of nationwide achievement standards to the education of students with disabilities to Title I and other federal grants relating to education. That other great source of federal regulatory authority, the Constitution's "commerce clause," however, has not been used to justify federal legislation in these areas. In United States v. Lopez, the Supreme Court in 1995 held that a law making it a crime to possess a firearm within a certain distance of a school was an impermissible overextension of Congress's commerce power. Even the justices dissenting in Lopez agreed that the content of education was a classic area of state, not federal, authority.
Nevertheless, once a state decides to provide an education to its children, as every state has, the provision of such education must be consistent with other federally guaranteed constitutional rights, such as the Fourteenth Amendment's right to equal protection under the law and the First Amendment's right to the free exercise of, and the nonestablishment of, religion. Therefore, even though the U.S. Constitution does not, in the first instance, require that an education be provided, it nevertheless has had a significant effect on American education.
Any treatment of education and constitutional rights must begin with the Fourteenth Amendment, which guarantees every citizen equal protection under the law. Application of this doctrine has been most profound in the area of school desegregation. In 1954 the U.S. Supreme Court struck down state-sponsored racial segregation of schools in the famous case of Brown v. Board of Education of Topeka, Kansas. This decision and hundreds of later court decisions applying it to individual school districts all over the United States have had major ramifications on virtually every facet of school district operations from the mid-1950s into the twenty-first century. This has been true not only in the South, but throughout the rest of the country, as school districts and courts struggled with how to effectively desegregate the nation's schools. In the decades since Brown, most school districts have eliminated "vestiges" of state-sponsored segregation, have been declared to be a "unitary" school district (as opposed to a former dual-race system), and have been released from federal court supervision.
Nevertheless, many unitary school districts, now concerned that their schools will become resegregated, are seeking to take steps to preserve racial diversity at their schools. In one of the supreme ironies of American jurisprudence, such efforts may now be illegal under the same Fourteenth Amendment that previously required school districts to employ race-conscious student assignments as a remedial measure but forbids such measures as a means of preserving integrated schools in school districts no longer under court supervision.
Another major constitutional issue facing American education involves public funding of vouchers for private schools. Although several states have enacted limited voucher programs, their legality and continued existence remains in doubt under the First Amendment of the Constitution, which requires the separation of church and state. In June 2002 the Supreme Court ruled that students in the Cleveland, Ohio, area may use state-funded vouchers to pay tuition at private schools, including schools with a religious affiliation. The decision in this case is likely to have a significant impact for decades to come.
As desegregation lawsuits in federal courts wind down, the most important constitutional litigation involving education is increasingly taking place in state courts, as plaintiffs' groups seek to enforce state constitutional guarantees. Beginning in the early 1970s plaintiffs' groups began to make constitutional challenges to the heavy use of local property tax revenues in most states to finance public schools. This system of funding public schools often resulted in large disparities in per-pupil expenditures between property-rich and property-poor districts. As a result of a series of these "equity" suits, which were based on state constitutional guarantees of equal protection and uniformity, most states in the years since the early 1980s have reformed their state education funding formulas to provide a greater degree of equity (although not complete equality) in funding between school districts. This has been accomplished in many states by providing more state-level funding to property-poor districts to offset their lower local revenues, and less state funding to property-rich districts.
During the same period, plaintiffs' groups also began to challenge the adequacy of state education systems, including the sufficiency of funding of public schools, under the "education articles" of state constitutions. These cases are quite different from "equity" cases, which are based on disparities in funding; "adequacy" cases challenge the sufficiency of the funding to provide the level of educational opportunities required by the particular state constitution, regardless of how such funding is allocated among a state's school districts. It is these state court "adequacy" cases that are likely to be the main source of constitutional litigation in the early twenty-first century.
Federal Constitutional Requirements
Below are discussed the evolution of school desegregation since the landmark 1954 Brown decision and the racial diversity in U.S. schools in the post-desegregation era. This section also reviews the status of school vouchers and their constitutionality under the First Amendment.
School desegregation. There is no question that since the early 1960s school desegregation suits under the Fourteenth Amendment have had a greater impact on American schools than almost any other factor. In its 1954 Brown v. Board of Education decision, the Supreme Court declared state-mandated racial segregation of schools illegal. A year later, in Brown II, the Court ordered that segregated schools be eliminated with "all deliberate speed." The Court, however, gave little practical guidance as to how school districts and the lower courts were to carry out this major transformation in the social fabric of many regions of the country. As a result, the process of desegregating formerly dual-race school systems lasted for decades and in the early twenty-first century had still not been completed in some school districts.
After Brown, little happened until the mid-1960s as many southern states waged a program of massive resistance to school desegregation. In Stanley v. Darlington School District, the federal court in South Carolina described the different forms of such resistance. In the mid-to late 1960s, token desegregation occurred, but that was due more to the passage of the Civil Rights Act of 1964, which forced school districts to desegregate as a precondition to receiving federal funds, than it was to court enforcement of constitutional guarantees. In 1968 the situation dramatically changed with the Supreme Court decision of Green v. School Board of New Kent County. In Green, the Court required that school districts promptly take steps to effectively desegregate the operations of their schools in the areas of student assignments, faculty and staff assignments, facilities, extracurricular activities, and transportation. Ineffective plans that resulted in only token desegregation were no longer permitted. Green was followed by the Court's 1971 Swann v. Charlotte-Mecklenburg Board of Education decision, which approved the use of mandatory busing as a desegregation tool. Thus began the real process of desegregating the schools. Mandatory busing, however, was extremely controversial, especially among white parents, and the effect of such desegregation plans was often undermined by what became known as "white flight" (i.e., white parents moving out of the district or placing their children in private schools). Therefore, in the 1980s, the courts began to rely more and more on voluntary desegregation plans that centered on magnet schools and other measures designed to encourage, but not require, students to transfer to racially mixed schools. One of the first such plans was approved by the federal court in 1989 in Stell v. Savannah-Chatham County Board of Education, which involved the school district in Savannah, Georgia.
By the 1990s most school districts had accomplished as much faculty and student desegregation as was practical, given "white flight" and the persistence of de facto segregation in housing patterns. Consequently, the courts began to release more and more school districts from court supervision on the grounds that they had eliminated the vestiges of the former segregated school systems "to the extent practicable." Nevertheless, although not discussed in Green, some courts also began to examine whether the "achievement gap" between minority and white students in many school districts was also a "vestige" of the former segregated system. Consequently, in deciding whether to dismiss desegregation cases, courts in the 1990s did not focus as much on student or faculty assignments (the main issues from 1954 through the 1980s), but rather on whether poor academic performance of minority pupils is a "vestige" of the former segregated system that must be eliminated before court supervision is terminated. In 1995 in Jenkins v. Missouri, the Supreme Court held that such low performance had to be causally linked to the prior dual school system. Because this is difficult to establish, plaintiffs have had only limited success in convincing courts that low minority performance is sufficiently related to the prior dual school system to serve as a basis for continued court supervision.
Therefore, as the nation entered the new millennium, the constitutional obligation to desegregate, which greatly influenced operations and planning in many school districts for more than forty years, had been satisfied in most districts and was becoming less and less of a factor in those relatively few districts that remained under active federal court supervision.
Diversity. The closing of the desegregation era does not mean, however, that issues of race have disappeared in public education. Many school districts, which successfully desegregated the student populations of their schools and have therefore been declared unitary and released from court supervision, continue the struggle to maintain racial integration or, as it is now more often called, "diversity," in their schools. Nevertheless, the Fourteenth Amendment, which once required race-based student assignments and admissions as a remedial measure, may now prohibit school districts from continuing to use race-conscious plans once such school districts have completed remedial proceedings and been declared unitary. Once the effects of past discrimination have been remedied, as in the case of a school district declared unitary, it is argued that there is no longer a remedial justification for taking student race into account in making student assignments or deciding upon admissions to special programs, such as magnet schools. For example, if student race is considered in admitting students to a magnet school, a student denied admission because her race did not contribute to racial diversity may claim that she was denied admission based on race and that such a decision is discriminatory and a denial of equal protection. School districts often respond that maintaining racial diversity is a compelling governmental interest, and that some use of race in the decision-making process regarding assignment of students should therefore be permitted. The lower courts are split on the issue, although the majority view tends to prohibit race-based admissions and assignment policies unless they serve a remedial purpose. Until the Supreme Court decides the issue, the lower courts are likely to careful scrutinize and in most regions of the country prohibit any consideration of student race in the student assignment and admissions process.
School vouchers. Many school reform advocates believe that public schools suffer from a lack of competition and that states or school districts should provide vouchers to students, especially poor and minority students attending substandard inner-city schools, to enable them to attend a private school. At least three states (Florida, Wisconsin, and Ohio) have passed legislation funding such vouchers. Until spring 2002 one huge unknown factor in the debate over using public funds to support private, parochial schools was whether such use of public funds violates the First Amendment of the Constitution, which prohibits government from unduly supporting religion or favoring one religion over another. In June 2002 the Supreme Court held in the case Zelman v. Simmons-Harris that the use of public funds to pay for religious school tuition is constitutional. Under this program, the State of Ohio provides vouchers to some 4,000 students from low-income families. The vouchers can be used to pay tuition at participating private schools, including religiously affiliated schools. Although the Supreme Court's ruling resolved the constitutionality of school vouchers, the policy debates about the vouchers are likely to continue in the years to come.
State Constitutional Issues
As school desegregation issues, which have dominated public education for decades, are finally resolved, lawsuits based on state constitutional requirements have moved to the forefront. These lawsuits have become known as either "equity" or "adequacy" cases.
Equity cases. These cases began with the unsuccessful efforts of plaintiffs in San Antonio Independent School District v. Rodriquez, a case brought in the early 1970s in federal court to challenge the method of funding public education in Texas. At the time, Texas, like most states, financed its schools primarily through local property taxes. Because property values differed greatly between districts, this method of funding resulted in significant spending disparities between school districts, with the wealthier districts in Texas spending more than two to three times as much as the poorest districts on a per-pupil basis. In rejecting plaintiffs' equal protection claim under the Fourteenth Amendment, the Supreme Court held that education was not a fundamental right under the Constitution. It therefore held that disparities in the provision of education services and facilities did not have to be justified by a showing that they served a compelling governmental interest, but could be justified merely by showing that a rational basis existed for such a taxing mechanism. Because the local property tax system had a rational basis, in the view of the Court, it was not unconstitutional.
Notwithstanding this initial defeat in the federal courts, proponents of equity among school districts in education funding continued their fight in the state courts, and they won victories in the mid-1970s in California (Serrano v. Priest ) and New Jersey (Robinson v. Cahill ). In these decisions, the courts struck down property tax–based systems based on state constitutional provisions requiring equal protection and uniformity, and they ordered the use of more equitable funding systems in which the resources provided for a child's education did not depend nearly as much on the property wealth in the community in which a child lived and attended school. Since then, "equity cases," as they are often called, have been brought in almost every state, and plaintiffs have been successful in many of them. While local property taxes remain a major source of school revenues, states have modified their education financing formulas to provide more state aid to property-poor districts to offset lower local property tax revenues in such districts and to provide less state aid to property-rich districts. While complete equality in funding has rarely, if ever, been realized, and is not required under most state court decisions, large disparities in funding between school districts have been greatly reduced in many states.
Adequacy cases. Equity cases, while successful in reducing funding disparities between school districts in many states, have fallen short of being the panacea that many school finance reformers believed they would be, for several reasons. First, attaining equity does not necessarily mean increases in education spending. Indeed, while the result of Serrano v. Priest was to insure equity in spending among California's school districts, it has at the same time moved California from one of the highest spending states on education to one of the lowest. Moreover, the equity cases did not, in the minds of many plaintiffs' groups, address the claims of many urban school systems. Such school districts and their supporters contend that they need additional funding to address the educational needs of the large numbers of their students who are at risk of academic failure because of the effects of poverty and other socioeconomic problems. Simply obtaining funding equal to other school districts is not sufficient, it is argued, given the extraordinary needs of such districts.
Since the 1970s plaintiffs have brought "adequacy" suits in more than twenty states, alleging that the state has failed to provide an "adequate" education, a right guaranteed by many state constitutions. Generally, such suits allege that educational "inputs," such as facilities, curriculum, textbooks and other instructional materials and equipment, and number and quality of teachers, are insufficient to enable schools and school districts to provide an "adequate" education for their students. Plaintiffs also rely on substandard "outcomes," as evidenced by low scores on standardized tests, low graduation rates, and high dropout rates as proof that the state has failed to provide an adequate education for substantial numbers of its children.
Such suits are normally based on the "education article" contained in most state constitutions that requires the state legislature to provide for some type of a "system" of free public schools. Generally, the education articles are couched in fairly vague terms, such as requiring "a thorough and efficient system of education" or a "system of free common schools." Although the constitutional language rarely gets any more specific than the foregoing examples, the highest courts of many states have interpreted such language to require an "adequate" or "sound, basic" education.
In several states, adequacy suits have been dismissed on the grounds that they involve political questions reserved by the state constitution to the legislature, and therefore that they violate the separation of powers doctrine. In essence, because the terms used both by the courts (e.g., "adequate") and the constitution (e.g., "thorough," "efficient") are ambiguous and capable of many meanings, these courts have held that if the courts decided such cases, they would in effect be substituting themselves for the legislature in determining important policy questions normally reserved by the state constitution to the legislative branch (e.g., what level of education to provide and how much of the state's resources to devote to education).
Notwithstanding pretrial dismissals in several states, plaintiffs have enjoyed success in increasing numbers of states, including most notably New Jersey, Ohio, Kentucky, and Wyoming. The highest courts of these states have struck down the state system for financing public schools and required the legislatures to appropriate significantly increased spending for public education. Other important cases, such as those in Arkansas, New York, and North Carolina, have been decided at the trial court level in plaintiffs' favor, but they have not yet been reviewed by the state's highest court. In still other states, such as Florida, cases have been filed but not yet decided.
In states where plaintiffs have been successful, often after many years or decades of litigation, such lawsuits have led to higher spending for education, including expenditures for school facilities, teacher's salaries, special programs, and technology. Whether these lawsuits have resulted or will result in improved student achievement, however, is another oft-debated question that is beyond the scope of this entry.
Both federal and state constitutional requirements have heavily influenced the organization, funding, and operation of America's schools in the past and are likely to continue to do so in the future.
See also: Supreme Court of the United States and Education.
Abbott v. Burke, 710 A.2d 450 (N.J. 1998).
Brown v. Board of Education of Topeka, Kansas, 347 U.S. 483 (1954).
Brown v. Board of Education of Topeka, Kansas, 349 U.S. 753, 757 (1955) (Brown II ).
Campbell County Sch. Dist. v. State, 907 P.2d 1238 (Wyo. 1995).
Civil Rights Act of 1964. U.S. Code. Vol. 42, sec. 2000d.
Dayton, John. 2001. "Serrano and its Progeny: An Analysis of 30 Years of School Funding Litigation." 157 West's Educational Law Reporter 447.
Green v. School Board of New Kent County, 391 U.S. 430 (1968).
Jenkins v. Missouri, 515 U.S. 70 (1995).
Robinson v. Cahill, 303 A. 2d 273 (N.J. 1973).
Rose v. Council for Better Educ., 790 S.W.2d 186 (Ky. 1989).
San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973).
Serrano v. Priest, 557 P. 2d 929 (Cal. 1976).
Stell v. Savannah-Chatham County Board of Education, 888 F. 2d 82 (11th Cir. 1989).
Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971).
Tuttle v. Arlington County Sch. Bd., 195 F.3d 698 (4th Cir. 1999).
United States v. Lopez, 514 U.S. 549 (1995).
Alfred A. Lindseth
janet m. holdsworth
janet m. holdsworth
Participation in interscholastic athletics programs provides students from diverse backgrounds opportunities to cooperate with and compete against their peers through sport. Participation in school sports may lead to the following benefits to students: improved physical health and fitness, higher self-esteem, a stronger sense of community and purpose, consistent time spent with an adult mentor, and increased academic performance in the classroom. Given the possible benefits associated with school sport participation, both boys and girls should have equitable opportunities to participate in and benefit from sports. Historically, boys have participated in interscholastic athletics programs in greater numbers than their female peers; at the turn of the twenty-first century, however, girls are participating in larger numbers than ever before.
In 1971 approximately 300,000 girls (compared to 3.5 million boys) participated in interscholastic sports programs. By 1999, an estimated 2.5 million girls (compared to about 4 million boys) participated in youth and high school sports. And overall, society is more accepting of this increased rate of girls' participation in school-sponsored sports. The increase in female participation in athletics at all levels across the United States is attributed mainly to the passage of Title IX of the Education Amendments of 1972 to the Civil Rights Act of 1964.
Since its passage in 1972, Title IX has been the main catalyst behind secondary school and college athletics programs creating more athletic opportunities for females. Title IX requires institutions receiving federal funding to provide equitable resources and opportunities for women in a nondiscriminatory way. The legislation states that "no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving federal financial assistance." The Department of Education's Office for Civil Rights (OCR) has been responsible for the oversight of Title IX since 1980.
OCR created a three-prong test that is used to assess gender equity compliance in school athletic departments. Schools must meet the criteria of at least one prong to be in compliance with Title IX. To satisfy the first prong of the gender equity test, a school must show that the athletic participation rates by gender are within 5 percent of the enrollment rate for that gender. Schools may also be in compliance if they satisfy the second prong–providing evidence that the school has a history and current practice of program expansion for girls. To meet the requirements of the third prong, the school must demonstrate that it offers an athletic opportunity for girls if there is a sufficient interest and ability in a particular sport. Although schools need to meet only one prong of this three-prong test, most interscholastic athletics programs still have not achieved equity in the three major areas of Title IX that pertain to high school sports: athletic financial assistance, accommodation of student interests and abilities, and other program areas.
Schools do not necessarily need to provide equal funding for boys' and girls' sports. School sports programs are in compliance with Title IX if the quality of the girls' program is equal to that of the boys' program. The funding may not be equitable because of large programs (such as football), but if the total funding for overall programs are equal, then the school is more than likely in compliance. Other program areas that must be equitable by gender include: equipment and supplies, scheduling of practices and contests, travel, access to quality coaches with equitable pay, locker rooms and facilities, access to training facilities and medical services, publicity, and sporting opportunities.
Achieving sports equity in secondary schools is a significant factor in increasing opportunities for girls in sports and in helping to change perceptions about athletes based on traditional gender stereotypes. Gender equity in interscholastic sports translates into students having similar opportunities for participation in a variety of sports and seasons regardless of their gender. Equitable opportunities to benefit from participation in interscholastic sports should exist for all students. Although the number of girls participating in school sports has increased since the passage of Title IX, inequities still exist. Schools need to work with their athletics administrators and designated Title IX officers to ensure compliance is achieved.
See also: Federal Educational Activities; Financial Support of Schools; Individual Differences, subentry on Gender Equity and Schooling; Physical Education; Sports, School.
Lichtman, Brenda. 1997. "Playing Fair: What School Leaders Need to Know about Title IX and Gender Discrimination in Athletic Programs." American School Board Journal 184:27–30.
Priest, Laurie, and Summerfield, Liane M. 1995. "Promoting Gender Equity in Middle Level and Secondary School Sports Programs." NASSP Bulletin 79:52–56.
Sommerfeld, Meg. 1998. "Parity on the Playing Field." School Administrator 55:32–36.
White, Kerry A. 1999. "Girls' Sports: 'The Best of Times, the Worst of Times."' Education Week 19 (7):16–17.
Women's Sports Foundation. 2002. "Playing Fair: A Guide to Title IX in High School and College Sports." <www.womenssportsfoundation.org/cgi-bin/iowa/issues/geena/action/record.html?record=818>.
Janet M. Holdsworth
Ever since 1852, when Harvard defeated Yale in a regatta, intercollegiate athletics have played an increasingly significant role on American college and university campuses and in their communities. The boat race, set in New Hampshire, marked the first intercollegiate athletic event in the United States, and athletics rapidly became an important, and often controversial, part of collegiate life. The surge of enthusiasm around intercollegiate athletics–both on campus and in the surrounding community–mirrored the infectious competitive spirit of the developing American culture and society in the late nineteenth and early twentieth centuries. Since that first intercollegiate athletic event, undergraduate students competing in this unofficial extra curriculum have been transformed into the highly trained, specialized student athletes participating in the nationally visible (and televised) athletic events of the twenty-first century.
After 1900, intercollegiate athletic programs grew expansively on campuses across the United States in terms of the quantity and type of sports offered to undergraduate students, the number of male participants, and the size of operating budgets. Athletic competition for female undergraduates saw limited development, however, with the exception of sports-related activities and contests organized by physical educators, such as intramural and related events. Historically, female athletes faced exclusion in sports, as access to scholarships and facilities, and to playing, coaching, and administrative opportunities, were limited.
From the late nineteenth century until the midtwentieth century, athletic activities offered to female undergraduates (e.g., basketball, field hockey, softball, and tennis) were meant to provide health benefits, not promote competition or any other seemingly negative and unfeminine characteristic in young women. This general protection and attempted preservation of collegiate women's feminine characteristics on campus paralleled the general perception of society at this time in history. The passage of Title IX of the 1972 Education Amendments to the 1964 Civil Rights Act marked the beginning of a shift from this restrictive climate toward an environment of more opportunities for females in athletics and of a growing awareness on campus and in society that female athletes can compete in the athletic arena in ways comparable to their male peers.
Gender Equity Legislation
Since its passage in 1972, Title IX has fueled the growth in college athletic programs and opportunities for female student athletes. Title IX requires institutions receiving federal funding to provide equitable resources and opportunities for women in a nondiscriminatory way. The legislation states that "no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving federal financial assistance." After the legislation was passed, colleges and universities were granted until 1978 to make the necessary changes to programs and procedures in order to be in full compliance with the law.
Subsequent legislation passed by Congress has provided further assurance that institutions will be held accountable for complying with Title IX and its principles. For example, the 1987 Civil Rights Restoration Act specifically requires athletic departments to comply with Title IX. Also, the Equity in Athletics Disclosure Act of 1996 mandates the reporting of intercollegiate athletic participation rates and also requires institutions to report on departmental spending on athletic programs, by gender.
The enforcement of Title IX and gender equity in intercollegiate athletics is the responsibility of the federal government. Specifically, it is the responsibility of the Office of Civil Rights (OCR) in the Department of Education to enforce this law. In 1979, the OCR created and released the Intercollegiate Athletics Policy Interpretation, offering regulatory requirements related to Title IX compliance to assist institutions and athletic administrators in achieving gender equity. The OCR's interpretation of the policy broke down the legislation's application into the following three major categories: (1) athletic offerings; (2) athletic scholarships; and (3) other program areas, including (but not limited to) equipment, facility use, coaching, tutoring services, and publicity.
Gender Equity "Test"
The institutional task of complying with Title IX legislation is challenging, given the language of the law and its policy interpretations. As institutional practices were, and continue to be, questioned, the courts became involved in ascertaining whether or not the athletic interests and abilities of females are accommodated effectively. In order to determine whether or not an athletic department is in compliance, the OCR created a three-prong test for Title IX. An institution's athletic department is found in compliance with achieving gender equity if at least one criterion is met.
The first prong in the OCR's gender equity compliance test is whether or not the intercollegiate athletic participation opportunities for male and female undergraduates are offered in numbers substantially proportionate to their enrollment numbers at the institution in question. The second prong includes an assessment of whether or not the institution is able to show a continuing practice of program expansion for members of the historically underrepresented sex, based on student interest and abilities. The third prong consists of whether or not an institution can establish that the needs and interests of the underrepresented group are satisfied and accommodated by the existing athletic program. Typically, the OCR and courts will examine this third criterion only when it is clear that an institution's athletic department meets neither of the first two criteria.
Opportunities, Challenges, and Debates
Title IX created, and continues to create, positive opportunities for females in intercollegiate athletics; however, real challenges sparking debate about gender equity in sports continue to exist. Despite a growth in undergraduate enrollment and participation and opportunities for females in intercollegiate athletics since the enactment of Title IX, data collected and reports released in the late 1990s suggest that inequities still exist across competition levels, with some divisional and sport differences emerging. These athletic-related inequities include fewer participation opportunities, unequal facilities and services, lagging coaches' salaries, and smaller proportions of operating and recruiting budgets.
According to the General Accounting Office's 2001 report, approximately 400,000 student athletes participated in intercollegiate athletics at four-year colleges and universities during the 1998–1999 school year, with approximately 160,000 being female athletes. While this represented a significant increase from the 90,000 female student athletes who participated in 1981–1982, published gender-equity statistics continue to highlight the underrepresentation of female student athletes, specifically in Division I universities (the institutions offering the majority of athletic scholarships), compared to the proportion of females in the undergraduate student population at these institutions. According to the National Collegiate Athletic Association (NCAA), females made up the majority of the total undergraduate enrollment in Division I institutions in 1997–1998, while only 37 percent of the student athletes were female. The majority of female student athletes are situated in the colleges and universities that are classified as Division II-and Division III-level institutions. By 2000, approximately 41 percent of athletes competing at the Division III level were female, compared to 38 percent and 32 percent at the Division II and Division I levels, respectively. As debates over the significance of the gains made for women's athletic programs continue to occur, the fact remains that female student athletes are underrepresented in all divisions, especially when the substantial proportionality criterion of Title IX is applied.
Additional gains have been made in gender equity since Title IX, including an increase in spending on women's sports programs. In the late 1990s, women's sports programs and budgets grew at a faster rate than men's sports programs and budgets, though data suggest that men's sports receive approximately twice as much money for recruiting, athletic scholarships, and operating expenses in the top collegiate athletic programs. In 1974 approximately fifty female athletes received athletic-related scholarships for their athletic ability, while 50,000 male student athletes were awarded such scholarships. By 1997, approximately 35 percent of all athletic scholarship dollars were awarded to female student athletes.
Although athletic-based scholarships awarded to female student athletes at the Division I level are increasing, many supporters of Title IX argue that the gap between male and female scholarship recipients is closing at an inexcusably slow rate. Even with an increase in the proportion of operating and recruiting budgets earmarked for women's sports programs, women's sports teams continue to receive less overall funding than men's sports teams. Additional data reveal that the Division II and III colleges and universities spend a larger proportion of their athletic funding on women's sports programs than do Division I institutions.
Despite the gains made by females in attaining midlevel athletic administrative positions in colleges and universities since 1972, women remain underrepresented in top-ranking, intercollegiate athletic leadership positions, including director-level administrative positions and top-paying coaching positions. A related and especially interesting phenomenon has occurred since 1972 in terms of the demographics of the head coaches of women's teams. Approximately 90 percent of female athletic teams had female coaches prior to 1972; however, by 1998, females coached only 47 percent of women's sports teams. A debate continues over this and related issues as to whether or not, with the passage of gender equity legislation and the male-dominated NCAA assuming leadership over the administration of women's athletics in 1983, women's sports have assimilated into the dominant culture of male sports. With this assimilation, some argue, came the loss of the unique characteristics of women's sports, as well as the female voice in governance issues related to intercollegiate athletics.
A major concern for many athletic departments at the beginning of the twenty-first century is how to commit to gender equity while building powerful and competitive programs, managing shrinking athletic department budgets, and avoiding the decision to eliminate men's teams. Debates over how to achieve equity, and at what cost to institutions and other athletic programs, are widespread in postsecondary institutions at all competition levels. Campus administrators employ various strategies to comply with Title IX, such as adding new facilities and purchasing new equipment and uniforms in an attempt to provide equal opportunities and equitable resources for female student athletes. Some colleges and universities have discovered creative ways to add athletic opportunities for female student athletes without eliminating men's athletic teams, which creates a win-win situation, produces a less threatening climate on campus, and placates both athletes and alumni.
According to Title IX, women in postsecondary institutions must be afforded equal opportunity in the classrooms as well as on the playing fields, courts, and tracks. Gender equity in general, and Title IX specifically, are necessary components to achieving equitable opportunities in the postsecondary education experience for all students, no matter their sex. Female student athletes and other individuals and groups, collectively, have made significant accomplishments in the area of gender equity in intercollegiate athletics. Debates surrounding how best to achieve gender equity in intercollegiate athletics, despite Title IX, additional supportive legislation, and court rulings mandating compliance, are likely to continue well into the first half of the twenty-first century.
Acosta, R. Vivian, and Carpenter, Linda J. 1985. "Women in Sport." In Sport and Higher Education, ed. Donald Chu, Jeffrey O. Segrave, and Beverly J. Becker. Champaign, IL: Human Kinetics.
General Accounting Office. 2001. Intercollegiate Athletics: Four Year Colleges' Experiences Adding and Discontinuing Teams. Washington, DC: U.S. General Accounting Office.
Howell, Reet. 1982. Her Story in Sport: A Historical Anthology of Women in Sports. West Point, NY: Leisure Press.
Lazerson, Marvin, and Wagener, Ursula. 1996. "Missed Opportunities: Lessons From the Title IX Case at Brown." Change 28:46–52.
National Collegiate Athletic Association. Gender Equity Task Force. 1995. Achieving Gender Equity: A Basic Guide to Title IX for Colleges and Universities. Overland Park, KS: National Collegiate Athletic Association.
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Janet M. Holdsworth