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title ix is less than perfect legislation. why?
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The recent fight to restore men's track at the University of Delaware has raised some compelling questions about administrative transparency, athletic department priorities, and--of course--Title IX.

My focus here is on the last, specifically the discussion about the legislation that has emerged since the announcement of the team's elimination in January and through the recent filing of a complaint by the team with the Office of Civil Rights (OCR).

The issues are larger than this one particular case, though. My own research on Title IX and the language used to discuss its history, its implementation, and its effects illustrate the great misunderstandings around both the legislation and the concepts of equality and equity, and how they are mandated by Title IX.

This post is part one of two about the discourse around how the accommodation of athletic interests and abilities* is assessed and implemented. Today I want to address the concept of reverse discrimination. In a subsequent post, I will discuss the history of the three-prong test in an attempt to address a common response to athletic cuts: I support Title IX, but I don't like how it is implemented.

The UD track team's complaint to OCR references the concept of reverse discrimination. This phrase has been used often in discussions about Title IX and is often proffered by those whose teams have been cut. It also appears in the media coverage of such cuts.

In 2007 James Madison University cut ten intercollegiate teams. Both men's and women's teams were cut, but more men's opportunities were eliminated because JMU needed to demonstrate proportionality in its accommodation of athletic opportunities.** In a lawsuit against the school, the group Equity in Athletics claimed--among other things--that the university was engaging in reverse discrimination. The courts did not accept this argument and the cuts have stood.

In 2009, a former Kansas University swimmer filed a complaint alleging that the university was engaging in reverse discrimination against men because it did not offer them enough athletic opportunities. In an agreement with OCR, the university agreed to document its Title IX compliance, but was not found to be out of compliance.

The reverse discrimination claim has not been successful. It is part of the rhetoric used by those who wish to protect the opportunities of people who already receiving these opportunities and their benefits. Historically it has been used in reference to racial equality, specifically affirmative action programs. (And criticism of Title IX has included that it is a quota system; a critique levied against affirmative action as well.) I base my own conception of reverse gender discrimination on the work of critical race scholars such as Richard Delgado, Kimerble Crenshaw and Gary Peller and their respective work on reverse racism.

Reverse discrimination--as it is being applied in these Title IX cases--assumes gender neutrality; the proverbial level playing field. Reverse discrimination means that the intent, the history behind, and the impact of cuts are the same for men and for women. They are not.

Male student athletes still receive, according to the NCAA's April 2010 report, 57 percent of all intercollegiate athletic opportunities. It seems difficult to argue that Title IX is creating reverse discrimination when men have always had and continue to have more opportunities.

* This is just one area in which compliance with Title IX is measured. It is arguably the most visible and most controversial.

** Once a school cuts women's teams it can no longer claim compliance with either prong two--history of expanding opportunities for women--or prong three--meeting the interest and abilities of the underrepresented sex.

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