“These young women think they didn’t ‘earn’ a spot on the team or a college athletic scholarship because they weren’t good enough—they don’t know that they’re the victim of intentional sex discrimination.”
Update, Tuesday, Sept. 22: According to an announcement from the Justice Department’s Civil Rights Division and the U.S. Attorney’s Office for the Northern District of California, San José State University (SJSU) responded inadequately to reports of sexual harassment, including sexual assault, of female student-athletes by an athletic trainer then working at SJSU. The Title IX violation resulted in a $1.6 million agreement, and SJSU has pledged to:
- “significantly improve SJSU’s process for responding to complaints of sexual harassment;
- “bolster the Title IX Office by revising the office structure and providing adequate authority, independence, and resources to the Title IX Coordinator;
- “publicize Title IX policies and protocols and develop user-friendly materials so everyone in the SJSU community knows how to report Title IX concerns;
- “improve the policies and procedures of the SJSU Sports Medicine and Athletics Training Program to prevent sexual harassment by athletic trainers;
- “deliver training to student-athletes and SJSU Athletics employees on giving and receiving informed consent for medical treatments and athletic training services;
- “survey SJSU Athletics employees to assess their understanding of SJSU policies and identify barriers to reporting;
- “take concrete steps to prevent retaliation under Title IX, including through training that provides clear examples of prohibited conduct; and
- “provide supportive measures and remedies to current and former student-athletes who were sexually harassed by the athletic trainer.”
More information about the settlement is available here.
Forty-eight years after Title IX prohibited sex discrimination in federally-funded schools, women and girls still don’t have equality in sports. Despite this inequality, many athletic directors are now using the COVID-19 pandemic as an excuse to cut women’s teams, fueling a growing gap between athletic opportunities for male and female college students.
But that’s all changing due to the heroic efforts of student activist athletes across the country who are filing an onslaught of new Title IX lawsuits, with encouragement and legal back-up of Champion Women, an organization that advocates for girls and women in sports. Champion Women was founded by Olympic athlete and lawyer Nancy Hogshead-Makar.
“People talk about ‘Title IX compliance.’ We have got to move away from that language because it doesn’t represent the harm that is being done to girls and women. Instead, call it what it is; athletic departments are engaged in institutionalized, intentional sex discrimination,” Hogshead-Makar told Ms.
“The truth is, people are really getting hurt: the 183,000 girls and women who don’t have college teams waiting for them or who don’t get a college scholarship because of discrimination. Women are a billion dollars behind men in college scholarships. A billion! Because they are women. No other reason.”
She continued, “The sad thing is these young women think they didn’t ‘earn’ a spot on the team or a college athletic scholarship because they weren’t good enough. They think they didn’t work hard enough. They don’t know that they’re the victim of intentional sex discrimination. The women’s sports teams and scholarship dollars aren’t there for women, like they are for their brothers.”
Not only do girls miss out on athletic opportunities and scholarship money, but at some schools they actually pay to support football. “Students, who are disproportionately female, pay in order for the football team to exist,” says Hogshead-Makar. “In some schools, it’s as much as $1,000 a semester in student fees. So over four years, a student could have an additional $8,000 in student debt to pay for your football team.”
In a recent report based on an in-depth analysis of publicly available data available from the Equity in Athletics Disclosure Act, Champion Women demonstrated that 90 percent of universities and colleges discriminate against women in intercollegiate sports. Women in higher education should be getting an additional $1 billion in athletic scholarships. This scholarship gap contributes to women holding a disproportionate share—about two-thirds—of all U.S. student loan debt, says sports economist Andrew Zimbalist.
“Sex segregation in sport means it’s really easy to measure discrimination,” Hogshead-Makar told Ms. “At its core, the law measures the sports opportunities a school provides to men and compares them with the opportunities provided to women. That means equal opportunities, equal scholarships, and equal benefits and treatment.”
In 2018-2019, NCAA schools provided women with 63,149 fewer sports opportunities than they provided men (the “raw gap”). But women are 56.5 percent of the student body. If a school provides 1-in-50 men with a sports opportunity, the same ratio should apply to women. If universities offered women the same opportunities to be on a team that they provide men, NCAA schools would be offering an additional 148,030 opportunities for women to play each year (the “true discrimination gap”). The number soars to 183,130 when Champion Women evaluated all higher educational institutions.
And the opportunity gap is growing: Despite ongoing disparity in opportunities between men and women, more participation opportunities have been added for men than women in 10 of the last 15 years. The disparity, which Champion Women refers to as the “true discrimination gap,” has grown from 100,308 in the 2001-02 school year to 126,974 in the 2018-19 school year, a 27 percent increase in sex discrimination.
Champion Women analyzed the athletic department data that 2072 colleges and universities report to the Department of Education and calculated whether schools offer men and women equal participation opportunities, scholarship dollars, and benefits (using recruiting spending as a proxy). They gave every school a pass/fail grade for each of those categories, and an overall pass/fail grade. Of the 2072 schools listed, less than 1 percent received an overall passing grade (see their searchable database).
The analysis concludes, “Data for the entire NCAA, NAIA, NJCAA, and USCAA paints a clear picture that intentional discrimination against women is not isolated to specific conferences, competitive levels, or geographic regions.”
Between 2015 and 2020, Champion Women shared this data with schools in private letters and legal memos addressed to university presidents, athletic directors, Title IX officers, women’s studies faculty, their development offices, the faculty athletic representatives, and even student body presidents.
“We thought that if the rest of the school knew—the law school, the development office, the chief diversity officer, the Title IX coordinator—if everybody knew how bad sex discrimination was in the athletic department, that they couldn’t get away with it,” said Hogshead-Makar. “We wanted to bring light to athletic departments that are normally pretty siloed. Most people have no idea what’s going on in the athletic department. We wanted to break that down, so that the values of the university as a whole would be applied to the Athletic Department. We thought that we would empower other people within the school to take it on. But the strategy failed.”
So she changed strategies. She reached out directly to student athletes.
Last summer, Champion Women began gathering college athletes on large Zoom calls across the country. Hogshead-Makar explained how well Title IX protects their teams from being cut, and how they—as young women—held the power to remedy sex discrimination for generations to come.
“When a school defiantly declares it is in compliance with Title IX, students believe them. They sit back. So part of what we do is pull back the cloak; we share the law, show them the numbers and the case for intentional sex discrimination, using data the school itself provides,” said Hogshead-Makar.
“The students are just dumbfounded, really back on their heels. The number of times that we’ve been on calls and there’s dead silence. They cannot believe it.”
The facts are really clear, but so is the law, said Hogshead-Makar: “The law is crazy clear: It says equal is equal. We’ve got 48 years of case law and regulations and statutes. They all say the same thing: Equal is equal. Students don’t know how well the law protects them.”
With knowledge of the facts and the law, students are now stepping up to fight for equality by filing Title IX lawsuits. “We’re batting 1000 every single time we make a presentation to a group of athletes, their families, alumni and boosters.” Champion Women’s presentations have now generated twelve Title IX cases. “My goal is to get 100 cases going in 2021,” Hogshead-Makar told Ms.
In addition to legal representation, Champion Women provides student athletes resources for organizing in their communities, including social media graphics and information about how to use social media to raise awareness about sex discrimination in athletics.
Athlete activism is making a difference, according to Hogshead-Makar. Students won a settlement at William and Mary in October and won a federal court injunction against University of Iowa last month, with their lawyers James Larew and Claire Diallo. Champion Women has generated other cases at MSU, Dartmouth, San Diego State University, Fresno State, UConn and more.
“The defense, which most athletes have absorbed and buy into, is the myth that football justifies discrimination. Or a donor. Or a sponsor. Or ticket sales. Nope. None of that justifies sex discrimination in education, just like it wouldn’t justify race discrimination. The core of Title IX always comes back to a well-settled principle: that men and women are entitled to equal educational opportunities,” said Hogshead-Makar.
“Title IX was patterned after Title VI, which bars discrimination due to race, color, or national origin, which was passed in 1964. There is no real outcry against Title VI. You never hear people say ‘we need to repeal Title VI’ the way that you hear people criticize Title IX, which is the exact same statute except you take out the words ‘race, color, national origin,’ and you put in the word ‘sex.’”
In addition to filing lawsuits, Champion Women is reaching out to athletic conferences across the country. In June and July of 2020, they sent letters to the NCAA Division I Conferences, including Group of Five, Power of Five, and Football Championship Subdivision (FSB) Conferences, and the NCAA Division II Conferences showing them the EADA data that schools were systematically, intentionally discriminating against women.
Sex discrimination in sport not only results in fewer opportunities to participate and lost scholarship dollars, this behavior also has a psychological impact on young women, says Hogshead-Makar.
“The whole school gets the message that women’s endeavors are not as important as men’s,” she told Ms. “The second-class treatment sends girls and women powerful messages about their importance and value, messages that stay with them, and have a lifelong impact.”
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