Title IX and Women Practicing with Men

Last week's NY Times had an article centered around a practice known to most observers of women's sports, that some women's teams practice against or with men, often ex-high school athletes who could not quite make the college men's team. But apparently some college conferences, and eventually the NCAA, may bar women's teams from this practice of using men either because it is regarded as somehow demeaning for women or, more concretely perhaps, because of the likelihood that college women's teams would then need fewer women. Indeed, some schools are not using the full complement of scholarships, and some have teams with rosters smaller than those allowed by the governing rules of the sport. But is there really a Title IX or other problem?

Unused scholarships cannot be the problem on their own. Title IX requires that schools spend proportionally the same (on scholarships, not facilities on coaches' salaries) on men and women based on their enrollments. If a college has a 50-50 male-female ratio in the studrnt population, then it must spend as much for athletic scholarships for women as it does for men, though it can spread these resources over fewer athletes of one sex or the other. Half-scholarships are quite common in some sports and at some schools. As for non-scholarship expenditures, equipment and faciltiies are judged by their overall "quality," so that a $100 million football stadium need not be matched by $100 million spent on women's sports, though the women gymnasts' locker room had better be awfully nice. But scholarships are more easily compared by actual cost and so that is how it is done. If a school has but 13 rather than 15 women on its basketball team, say, then any unused scholarship money is presumably going to other sports, or is concentrated on fewer athletes, with full rather than partial scholarships, as is permitted. Nothing stops the school from taking walk-ons or unsupported athletes onto its team, but presumably it thinks their time is wasted or, perhaps, that team morale suffers when there are teammates who never play and who are not even on the same court as the starters during practice sessions.

My colleague Adam Samaha suggests that if the coach thinks that practicing against men is good for the team's development, then an argument can be made that this strategy must be allowed in order to permit the women to develop their potential as much as possible in preparation for careers in the WNBA, for instance. This argument might be used against one favoring a ban on male practice partners on arms race grounds. I can imagine a conference thinking that teams will improve by practicing against men, much as the men might improve by practicing against imported professionals, but that the schools are better off limiting competition in order to avoid an arms race. Of course on this ground, the men's teams might be barred from practicing with professionals (as I believe they are) but women may be permitted to do so.

The argument can go too far, and it may prove too much. Women might say that they ought to have a right (not just permission) to practice with and against the men's team in basketball, soccer, and perhaps even in football, say. The argument would be that if practicing with better athletes is the route to improvement, then women will be better players and have better career opportunities if they are encouraged in this manner. Much as Title IX would not allow a college to take its best coaches and always assign them to the men, why should it take its best practice partners and assign them only to men? The argument seems logical but slightly absurd. It suggests that at least one of the arguments in favor of a right to have men at women's practice sessions will not hold up.

Comments

[Frederick Hamilton]

Professor Levmore,

You bring up a bigger point than men practicing with women. Title IX on its face is discriminatory and potentially unconstitutional.

It acknowledges men and women are not equal.

Ohio State should have one basketball team in the true spirit of equality. The best players get to play. Same with the track team. Whomever runs the 100 yard dash the fastest is on the team.

In some college sports the women would be equal to the men and would make the team on their merits, golf and tennis for instance. Actually they would beat the men at times.

Every person, male or female should have the opportunity to make the team. The best athlete wins.

Only in sports do we acknowledge that men and women are different. Everywhere else they are supposed to be equals.

I think I smell a skunk in the proverbial sports woodpile. Equality only goes so far doesn't it?

[golddog]

"Title IX requires that schools spend proportionally the same (on scholarships, not facilities on coaches' salaries) on men and women based on their enrollments. If a college has a 50-50 male-female ratio in the stud[e]nt population, then it must spend as much for athletic scholarships for women as it does for men, though it can spread these resources over fewer athletes of one sex or the other."

That does not seem right. The quote below seems to directly contradict that assertion. Guess where it's from.

"[T]he 'participation opportunities' offered by an institution are measured by counting the actual participants on Intercollegiate teams. The number of participants in Brown's varsity athletic program accurately reflects the number of participation opportunities Brown offers because the University, through its practices 'predetermines' the number of athletic positions available to each gender. "

At Brown there were many men who were turned away from participating in varsity intercollegiate athletics because Brown had to maintain a male/female ratio of student athletes that represented the overall composition of the student body. What this meant was that on some teams (i.e., track and field) if a woman quit, one of the men would have to be cut. Coaches would have beg uninterested women to remain on the women's team so that men would not have to be cut.

[Erasmussimo]

This is a tricky situation. While I am philosophically inclined in the direction Mr. Hamilton points, I cannot deny some basic human truths. For example, athletic teams operate as social units, and a great deal of social bonding takes place in the locker room. Since our culture doesn't permit men and women to mix in the locker room, a mixed-gender team would be split across locker rooms and might not develop the same team spirit that a single-gender team would enjoy. This argues for broad institutional segregation by gender.

Even trickier is the recognition of fundamental physical differences in the male and female frames. For very solid biological reasons, male upper body strength exceeds female upper body strength. Also, for even sounder biological reasons, males in general are better runners than females. Neither of these facts denies the possibility of females at the far end of the statistical tail outperforming males. Indeed, there are plenty of genetically odd people who cannot be unambiguously categorized as male or female. Most good female runners have never given birth and some would be well-advised to avoid pregnancy because of their narrow hips.

Given these complications, I am loth to accept a simple-minded open market for athletes; I believe that some adjustments must be made for gender differences. However, I will readily admit that the specification of such adjustments requires wisdom on a level far above mine.

I think we can at least accept that such restrictions should apply only in government-sponsored efforts. I have no problem with the fact that males are more interested in sports, and therefore more willing to pay money for sports, and therefore create greater incentives for male athletes.

Perhaps the solution is to simply stop spending government money on athletics?

[Frederick Hamilton]

Eras,
Indeed, and the money spent on "male" athletes is a disgrace. The NCAA is a joke. College athletics is a joke.

You get to go to Notre Dame or Northwestern if you stand 6'9" tall and can hit a 20' jump shot with your eyes closed. Your SAT and GPA would never allow you past the first layer of the admission process.

All Division 1A schools have two admissions departments. One for the regular student body and one inside the athletic department for "student athletes". Try getting into Purdue, Ohio State, Northwestern, Duke or Notre Dame with a 2.7 GPA and an SAT of 850.

The carnage, corruption and hypocrisy of college athletics and Title IX will only change when university presidents decide that college is where you go to get "educated". It isn't where you go as Professor Levmore states to prepare for the WNBA.

I am not saying universities should abandon athletics. They should abandon preferential admissions of students who don't belong at the university. They don't have to go as far as President Robert Maynard Hutchins did at this univresity (Chicago) in 1939 recognizing the corrosive effect of college athletics by eliminating football.

The university presidents need to grow a spine and take control of the "student athlete" problem and the prostitution of their schools to the athletic department. Male and female. On that they are sort of equal. Kinda sorta. The gals I think in the main might belong at the university more than the football and basketball players (male).

Don't hold your breath.

[Frederick Hamilton]

Oh and Eras, when President Hutchins showed his courage, the University of Chicago was a member of the Big Ten, had won a number of Big Ten football championships and had just had the first Heisman Trophy winner.

[Erasmussimo]

Very well, we have the solution: eliminate competitive college athletics. Continue with intramural athletics but dump competitions between schools. Of course, there is the little problem of how to convince colleges and universities to embrace this salubrious policy. I suggest that the Federal government pile all manner of complicated regulations upon them until they give up in frustration. Let's call it 'Title 999'. ;-)

[brian]

Along the lines of the first comment above, why should football, baseball, and wrestling, for example, even count as men's sports??? Women are allowed to try out for these teams - and some even make them - while men are not allowed to try out for softball, field hockey and other "women-only" sports. What hypocrisy.

[BAC]

Prof. Levmore,

Should the NCAA be concerned that these male "practice squads" are (or might become) fronts for developing non-scholership prospects for the male teams?

[Joan A. Conway`]

I don't know if I am suffering from the Stockholm syndrome or what, but after 14 years of fighting the court concerning my civil rights I want to tell young women don't waste your time in these pursuits that have as their bases recent legislative statutes in an anti-federalistic Congress.

Move on to other interests of which women have many.

Society is slow to change! I

f you become a loser playing the Civil Rights Act game, recognize it quickly and get out of it quickly.

Time does not make you a winner, but a lot older and wiser and poorer.

House of Representative, Ms. Nancy Pelosi, the first female speaker of the house, in my opinion is weak.

Presidential hopeful, Senator Joseph Biden, strikes her out in her first week, when he calls her on her statements that would micro-manage the President's involvement in the Iraq buildup, before he decides to cut and run, as potentially damaging to the Democratic Party, which it is!

Somebody has given the Democratics another defeat with Ms. Pelosi at its helm. She decides to color her taking of the oath of office with her children and other women's children. How nice. READ: This oath taking is just a myth and is for the children. No one here believes in it!

Females, like many other suspected categories, are too shallow with their power.

They make lousey landlords, managers, and supervisors, because they act upon self-interests.

Now I have provided my own bias to females getting power unfortunately. I don't like myself for doing it either. She make have move the marble ceiling over for awhile and squeezed in, but will she move it back again to seal it shut for decades to come by her self-indulgences. Oh, how catholic! Now I was baptised a Roman Catholic, but this is not what the nation wants. The nation was unity in Christian America. Get the pope out of it!

[Cynic]

Joan, the sad fact of the matter is that Nancy Pelosi would have never made speaker if she hadn't sufficiently "softened" herself so as not to seem like one of those horrid "man-hating" feminists (as all feminists are, of course). I can't really blame her for talking about her grandkids... maybe our own granddaughters will have the luxury of not having to fit stereotypes someday, but that day hasn't come yet.

Arguing about "inherent differences" between men and women is pointless. Everyone has already made up his or her mind on this count and reason and logic simply don't enter into the discussion. The only reason to bring up rhetoric like this is to stir an already-boiling cauldron of discontent.

I agree that far too much emphasis is put on sports in college -- ironically, Title IX might help us get it down to a manageable level, such that universities can finally focus, once again, on turning out well-rounded young people instead of money machines. History shows us that when women enter into a sport, interest drops off. This is sexist and unfair, but it's a fact. Hopefully the greater inclusion of women in college sports will eventually lead us to a place where, FINALLY, we stop caring SO MUCH about college football that we decide to close down the House of Representatives because there's a game that day.

[curtisstrong]

I´m torn in about 500 directions with this one.

I know that all of us here on a nerdy law blog don´t have much at stake when we say that universities should educate, period. In fact, my gut reaction is that way. I really think that universities could do a better job of balancing the needs of education and sports.

But like I said, we don´t have much at stake there. I sincerely doubt that all the people who work as coaches, salesmen, who work at Nike and Footlocker..etc., would agree with us that college sports don´t add incredibly to our economy and serve a higher purpose than just fill enrollment at a university. Furthermore, college sports provides nearly all of the athletes that make up our system of professional sports, again an incredible source of income for our country. Not just at the box offices. Not just in sportswear. Also in construction for ridiculously big ass houses, outrageous jewelry, nightclubs, hotels, charter jets, food and beverage consumption, high end clothing, ferrari´s, and all the other things that these athletes spend their money on. The rest gets put into some bank somewhere that the rest of us can borrow to pay for our smaller houses and middle class cars.

I don´t think that shutting down federal funding for college sports, or trying to change an intense interest that our country has in athletics is the right path to pursue. Besides, that´s futile anyway. People like it, some love it. We get personally attached to our teams and we´ll pay dearly to go and watch one or two games a season. It´s fun, and it´s usually a healthy way to spend some time (except when the Nuggets and the Knicks turn a basketball game into a boxing match).

As far as men/women go, I agree that it´s tricky. Why shouldn´t women get as much money as men? On the other hand, men generate a lot more cash than women do (limited to the athletics department), in almost every university in the country. So, that seems like a fair reason to give men more money. Is that a sexist thing to say? I don´t think so, because almost all the women aficionadas that I know also agree that they´d usually rather watch the men play (with a few exceptions...tennis, gymnastics, track and field and some others).

Perhaps some could argue that this is all the basis of male domination that has been put in motion since antiquity. I don´t think that´s the case here.

I wonder if there really is a way to sort this out. Women should be treated equally. But what kind of equally? Equally in the sense that if they can play as well as the men then they should be allowed on the team, as Frederick argues? That seems a quick way to exclude nearly all women from college athletics, especially given the biases they´d be up against. Equal funding and splitting the boys and girls up? That seems a nice way to say, "Sorry, girls. Can´t play with us. Go make your own team." This also takes a bit away from some of the major moneymakers to put the resources in other areas that don´t have as much economic benefit for the university. Funding that is based on how much money is generated by the sport? We´re going to see some programs disappear, and others being grossly underfunded. We may see boys getting scholarships while girls don´t.

The way Title IX is set up right now seems about the best compromise that I can expect, honestly.

As for women practicing with men, I´m okay with giving more money to each individual girl, sacrificing a few of the "benchwarmers" for male practice partners that willingly participate for free. Dean Levmore has a good point that the team morale suffers when more players are on the bench. Having participated in quite a few sports and quite a few teams, it´s ALWAYS better when fewer people are on the bench. Always. The more people who are on the bench, the more people there are to complain and whine about how the coach sucks, and how their teammates aren´t doing things right and on and on. The team gets split down the middle...

Plus those benchwarmers are going to be the half scholarship people that Dean Levmore points out. How do they pay for the rest of their tuition? They have to practice and travel the same as the other players, so there´s no time for a job. It´s difficult...my sister (softball player) was lucky because my parents paid her tuition. Let these people play intramurals, where they´ll be happier, and they can get through university just like the rest of us.

The fact that Title IX and universities don´t want women and men to practice together is in an of itself a bit of a concern. Your going to trade an entire men´s practice squad for two or three extra girls who could have gone to a different university and got playing time, or who could have played intramurals, but who will probably not get playing time, or add a whole lot to the team as a whole. The trade seems detrimental.

[curtisstrong]

Sorry, that last part was a bit confusing. What I meant to say was that the girls might have been able to get playing time at a different university, but they probably would not get playing time at the university that picked them up as the "extras." Hopefully that makes some more sense.

[rugbymom]

So much of this applies to Div I that II and III are lost in the shuffle. And, so much is myth. The majority of men's football and basketball programs actually lose money, and are additionally or solely funded by outside-the-institution dollars from sponsorships and fundraising. Gender will continue to play a role as long as "the deciders" in athletics remain male. Men's collegiate sports didn't receive media recognition for the first 75 years of existence and it will take time before women's sports catch up. In the meantime, Title IX is a good bridge, because without it, women would be just cheerleading, not playering. It's difficult for those who have always "had" to give, whether it be time, money, locker rooms, uniforms or power to those who historically have not.

[Joan A. Conway]

My cousin, who is a constructional engineer consultant for Hughes, has an athletic daughter, who received a scholarship to play a man's sport.

She didn't need it, but became a recipient of it. It was an honor for the family to have such a talented daughter and they of course accepted the money.

We, that know the situation, frown upon a young girl in a tough sport, of not-knowing the consequences of these very early proclivities, or her body's ability to take the punishment. We also shake our heads why the family accepted the money as rather dishonest, unless the school is not telling its full designs upon the girl in the scheme of things. It may be a payoff of any injuries sustained by the sport too.

I find it disturbing.

[Cynic]

Joan... are you actually suggesting that women SHOULD NOT play sports???

[Howard Wasserman]

>Should the NCAA be concerned that these male >"practice squads" are (or might become) >fronts for developing non-scholership >prospects for the male teams?

No. Most of the male students who do this were decent high school players, some of who might have been able to play small college. They generally are not even close to being able to play major-college men's basketball. In fact, in terms of basketball skills, most of them are not as talented as the best players on the best women's teams.

[Frederick Hamilton]

Title IX is an acknowledgement that men ane women are not really equal. Clearly they are not physically able to compete on the athletic field in the vast majority of "sports" with their male counterparts.

Title IX simply legislatively discriminates men from women. Constitutional? Probably, even the Supremes would agree men and women are not physically equal.

Ergo. They don't belong on that sports field where victories are denominated by dead and wounded. War. That is called the Title IX of war.

[superdestroyer]

Howard,

You are wrong about the men not being as good as the women. The worst men's team in Division one could be able to beat the currently number one ranked women's team at Maryland. Most of the starters at Maryland would have a hard time playing in a pick up game.

[Howard Wasserman]

Superdestroyer:

Not the forum for this necessarily, but . . .

Yes, the worst men's D-I team beats Maryland's women's team. But, in general, none of the male students who do this are or could be D-I players. And they certainly are not a D-I team as a whole.

And I said "basketball skills" deliberately. Most of the male students are bigger/quicker/faster/stronger. But they are not better basketball players. One of the reasons women's coaches do this (Pat Summitt started it, I think) is that it gets the women used to playing against more athletic (even if not as skilled) opponents.

And I said "best players on the best teams," not the mean. I am pretty sure that (to pick a random example) Diana Taurasi was a better player than the average male UConn student (someone not a member of the men's team).

[Cynic]

"Title IX is an acknowledgement that men ane women are not really equal. Clearly they are not physically able to compete on the athletic field in the vast majority of "sports" with their male counterparts."

Do I need to repeat myself, Frederick?

"Arguing about "inherent differences" between men and women is pointless. Everyone has already made up his or her mind on this count and reason and logic simply don't enter into the discussion. The only reason to bring up rhetoric like this is to stir an already-boiling cauldron of discontent."

But, by all means, keep on spewing your (unscientific and mostly emotional) rhetorical drivel. It detracts from your other points so that I don't need to bother arguing with them.

[Joan A. Conway]

Cynic I am suggesting that parents should consider that women and girls are not medically as sturdy as men and boys and over the years the injuries sustained by the females may be a very bad idea.

I was a former dancer from age 4 to 13 years of age.

I practiced 4 to 5 nights a week, at the ballet bar, on my toes, with my tap shoes on, and falling onto the hard wood floor to perform various acrobatics. I performed at the Civil Opera House and in Grant Park and at my grade school(s).

Throughout my life I was a strong member of various health clubs doing cardiovascular steps, stretch, and of course my favorit arobics. I also am a swimmer, a diver, and have done deep diving. I rode horseback. I drove a moped. I played golf. I played some tennis. I loved to walk.

So am I not against sports for all women, only some kinds of activities may not be a very good choice for all female organs and their particular physical structure.

Today I suffer from arthritis in my knees and pelvic area and buttlock.

I still do cardiovascular steps and stretch, but can only jog on a very good day.

I believe my active lifestyle was somewhat a cause of my ailments today.

I have hammer toes to prove I danced on my toes for many a young year.

At the height of my dancing career, I did a solo to "Some Enchanted Evening," in a Gwen Vernon custume of pink and summer green tuile on my toes at the Civic to my proud parents.

But I was not inclined to be a ballerine, because I developed breasts and became more interested in mathematics and school activities.

Thus, ended my career as a toe dancer.

But I do remember a certain Delores Rodgers, who performed the 'Flight of the Bumblebee' on her toes to the delight of everyone.

Delores was very muscular and fast athlete in her role as a ballerina.

Also I recall a certain Sugar Kilpatrick, whose name will always remain in my mind for some odd reason.

Sugar looked every inch the ballerina too. T

There were a brother and sister team, known as Stanley and Sophie, who shared our dressing room.

We got use to undressing with the same sex early.

These are fond memories.

I cannot deprive anyone of their youthful attempts in the field of dance, because of my association with the dance community in Chicago, Illinois, and learning what the 'green room' really means.

[Cynic]

So, when you say certain kinds of sports, you're primarily talking about dancing (and ballet in particular)?

If so, it seems to me that laws like Title IX are a godsend, since they incentivize OTHER kinds of sports for girls, instead of having girls feel limited to ballet or other more stereotypically "girly" sports.

Unless I'm misunderstanding you?

[priscieve]

It's not about "girly" sports. It's about the fact that "manly" sports used to get all the funding because they require so many players. Without Title IX all the money went to football (which takes up 100 scholarships alone at my university), basketball, and baseball. At the time, women couldn't beg for an athletic scholarship because the "male" sports needed them for players.

Until women's football takes off, how else do you balance the funding? Forget for a moment that it's not going away & remember that college sports brings in tons of money for tons of other people than its athletes who cannot get paid.

[RPD]

It is interesting that everyone on this blog seems to be critical of (male) basketball and football players as being the subversive elements in the whole "scholar athlete" enterprise. That is, the basketball and football players are the individuals who don't "belong" in our colleges and universities. It seems the latent assumption is that only football and basketball players benefit from lowered admissions standards and lowered academic standards. Or, put another way, the football and basketball players are treated as the ones undermining the sanctity of college sports while undermining the academic integrity of the University. Yet female lacrosse players/cross-country runners/rowers/volleyball players/basketball players/gymansts/hockey players/tennis players all benefit from the same double standard. They all benefit from lowered admissions standards, increased academic support, increased financial aid, etc. But the criticism is solely directed at two particular groups of athletes, whereas female atheletes are portrayed as victims. Why are people more comfortable with the female tennis player getting into UCLA because of her athletic ability, and uncomfortable with the football player?

[Joan A. Conway]

Why are people more comfortable with the female tennis player getting into UCLA because of her athletic ability, and uncomfortable with the football player?

I think it has something to do with managing a tennis career versus managing a football career.

The tennis player is a solo sport and the football player is a team sport.

Hence, the tennis player has to have some smarts to get where she got, while a football player is relying on his team to get where he has got.

More abuses come from the team end of it than from the individual end of it, with recent exceptions in the female tennis player drug abuses: Jennifer Capriotti!

Forget for a moment that it's not going away & remember that college sports brings in tons of money for tons of other people than its athletes who cannot get paid.

I disagree that it's not going away.

The generation of parity in contact sports may very well go away when they realize their youthful demands are harmful to them beyond their young imagination.

Girly sport, like dance, are not very girly with the famous male ballet dancers that hve capture our attention in the late 70s and 80s.

But a price is paid for the chance to become one of them if not becoming one of them.

But perhaps you are right after all about it not going away.

Hollywood actors, who inherited the profession from their fathers or mothers, are still victims of the abuses associated with their career.

People don't seem to see other alternatives than what their father or mother did to make money, no matter at what costs.

People need to get smarter as far as their choices are concern at an earlier age as well to avoid becoming someone we were all uncomfortable with like Jennifer Capriotti.