Thursday, 3 October 2013

Title IX requires equal access . . . even during the federal government shutdown

The government shutdown is having a far reaching impact across the country, and unfortunately, not even sports fans are not immune from its effects.  Due to the shutdown, the Department of Defense announced the suspension all intercollegiate athletic competitions involving the service academies, including Army, Navy, and Air Force.  Absent a shutdown ending miracle, speculation abounded yesterday that the Air Force-Navy and Army-Boston College football game would be canceled.  There is good news, however, for the fans of those football teams: the games will go on, per ESPN's Brett McMurphy.  McMurphy reported that "nongovernment funding" would cover the costs of these games, allowing the Falcons and the Midshipmen, the Black Knights and the Eagles to battle it out on the football field Saturday.

But what about the other sports teams at the academies? And specifically, what about the women's teams at these schools? Yesterday, both Army and Navy canceled women's soccer games against Colgate and at American, respectively.  This is certainly unfortunate for those teams, as well as for the other non-football men's teams that have had events or games canceled. 

More than just being unfortunate, another question crossed my mind: does this football-only preservation violate Title IX of the Education Amendments of 1972?  Title IX states, in part, 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 education program or activity receiving federal financial assistance."  When it comes to sports (and other extra-curriculars), Title IX requires that men and women have equal opportunity to participate.  The Department of Education evaluates schools' athletic programs to determine whether there is equality for men and women, and specifically considers the "scheduling of games and practice time" in this evaluation.  Just because a school spends more money on a men's team than a women's team does not necessarily mean that it violates Title IX, but the law’s regulations state that the Assistant Secretary for the Civil Rights Department "may consider the failure to provide necessary funds for teams for one sex in assessing equality of opportunity for members of each sex." 
Accordingly, despite the extenuating circumstances created by the shutdown, and through no fault of any of the athletes, there's a possibility that the generous support for football programs could create complications for the academies under Title IX.  This concept is not altogether new in college athletics - for years legal scholars have warned that a pay-for-play system that exclusively targets football and men's basketball players would not be compatible with a school's Title IX obligations. 
All schools, including the academies, are required to have a Title IX compliance officer.  I imagine each of the officers has considered this issue in much greater depth than I have, and perhaps they have decided that there is no or minimal risk under Title IX.  By no means am I suggesting that academies should cancel their Saturday football games.  I think it's great that the academies and Boston College (and perhaps some generous donors) have found a way to make these games happen.  For many reasons, most of which are more important than sports, I hope the government shutdown ends soon.  In that case, all academies' sports teams can continue with their regularly scheduled matches.  Alternatively, hopefully the non-revenue sports will find a way, or the money, to keep their schedule moving forward.  Absent those outcomes, all schools, including the service academies, need to remember that Title IX remains in effect even if the federal government, including the Office of the Assistant Secretary for the Civil Rights Department, is shut down.

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