Since 1972, when Title IX was signed into law prohibiting discrimination on the basis of sex by any educational program receiving federal financial assistance, colleges and universities have faced questions about what constitutes “discrimination” under the statute, specifically in the universe of college athletics. These questions have historically fallen under the purview first of the Department of Health, Education and Welfare and then by its successor, the Department of Education.
Now, 52 years after the law was passed, the Department of Education is under threat by the incoming presidential administration at a crucial time for Title IX enforcement, as new NCAA policies could spell a threat to gender equality in the college sports space even as female student-athletes continue to gain visibility and marketability.
Over the last several years, sweeping changes to the NCAA’s long-standing amateurism schemata have introduced above-board payments to student-athletes for the first time in the history of college sports. In 2021, the Supreme Court’s decision in the landmark antitrust case Alston v. NCAA led the NCAA to change its amateurism policies and allow students to capitalize on their name, image and likeness by signing brand deals and monetizing their social media.
Since then, policies regarding these income streams have continued to evolve amid new legal challenges. In October, a preliminary settlement was approved in another antitrust case dealing with athlete payments, House v. NCAA, that would allow student-athlete payments to come through a revenue-sharing arrangement. If this settlement were to go into effect, the revenue generated by school athletic programs would be partially used to pay athletes, and it would mark the first time that schools would be allowed to directly pay students for their revenue-generating labor as athletes. The projected numbers would not be small. According to NCAA president Charlie Baker, student-athletes across schools and sports could expect to see over a billion dollars total per year under this model.
Allowing young women to capitalize on what for many is their peak years of athletic earning potential is a new tool in narrowing the gender gap, and with the boom in visibility and investment in women’s sports over the past few years, female student-athletes are positioned for historic levels of access to athletic-related income.
In some ways, developments in NIL and proposed revenue-sharing have the potential to be uniquely beneficial to young women in college sports. While top-performing male athletes can in some cases be rewarded with multi-million dollar professional contracts and high-profile coaching jobs, historically, earning potential for even the most prolific female college athletes has been significantly lower, with fewer professional jobs available and lower salary ceilings. Therefore, allowing young women to capitalize on what for many is their peak years of athletic earning potential is a new tool in narrowing the gender gap, and with the boom in visibility and investment in women’s sports over the past few years, female student-athletes are positioned for historic levels of access to athletic-related income.
Despite the upsides, however, this monetary revolution raises new questions about Title IX compliance that schools may not be prepared to answer. Money in college sports is not, and has never been, an even playing field. Men’s football, and to a lesser extent men’s basketball, are the primary drivers of revenue within athletics departments, with some Division I teams generating over $150 million in revenue for their schools in an individual season. With the onset of NIL, even prior to any revenue-sharing agreement taking effect, male athletes in these programs are also earning more, disproportionately reaping the benefits of NIL payments.
Title IX does not require dollar-to-dollar equality between men’s and women’s athletics expenditures, but it does require expenditure and opportunity proportional to enrollment and interest, according to guidelines set forth by HEW in 1979. Therefore, any proposal that ties student payments to revenue should be proportional between male and female athletics based on those factors, and not based on the amount of money brought in by any individual team. If they are not, female student-athletes who feel they are getting the short end of the financial stick would have grounds to seek remedies through the Department of Education’s Office of Civil Rights.
OCR has the authority to investigate alleged Title IX violations and to withhold funding from schools that are out of compliance. However, historically, reliance on OCR has been an exercise in frustration for those seeking to remedy or receive guidance on alleged Title IX violations, as OCR’s enforcement has been, in reality, functionally toothless. A 2024 report from the U.S. Government Accountability Office (GAO), which reported data from 2008-2022, indicated that over 90 percent of colleges and universities do not report proportional athletic participation, and that nearly two-thirds of schools show a significant gap of more than 10 percent between enrollment and athletic participation. In cases where OCR is called on to investigate alleged violations, data shows that they often take one to five years or more to review compliance plans. No school has ever had funding withheld due to Title IX violations, and in the three years since student-athlete payments have been allowed by the NCAA, they have not issued guidance on NIL obligations under Title IX despite requests by lobbying groups to do so.
No school has ever had funding withheld due to Title IX violations, and in the three years since student-athlete payments have been allowed by the NCAA, they have not issued guidance on NIL obligations under Title IX despite requests by lobbying groups to do so.
Therefore, OCR in the best of times has thus proved itself an unreliable enforcer of Title IX in college athletics, and these recent and potential future shifts in NCAA policy have opened up a host of new, ongoing, and forecasted equity questions at a moment where the federal government may find itself least equipped to provide guidance.
In November, Donald Trump won election to his second term as U.S. president, and one of the keys of his policy platform was significant cuts to the Department of Education. While details of his plans were minimal on the campaign trail, what was said promised, generously, a hands-off federal approach to education.
This would be in line with the first Trump administration’s goals for the Department of Education. OCR updated its processing protocols in 2018 to allow dismissals of cases that were considered “burdensome” to the office or where the office determined that the filings were “repetitive.” While these particular policies were revised after lawsuits were filed by advocacy groups, the “do less” ethic when it comes to civil rights investigations was a hallmark of Trump’s first term that promises to carry forward into his second, as he campaigned on even further potential cuts to Department of Education resources. It is therefore reasonable to expect even fewer thorough investigations into Title IX complaints, fewer findings of Title IX violations and less institutional guidance on any potential new policy that might implicate the Title IX rights of student-athletes at a time when students seeking equitable opportunity may need it most.
With the Department of Education and OCR likely taking a backseat for the foreseeable future, it is incumbent on schools and universities to turn over a new leaf and prioritize their commitment to equal opportunity for their female student-athletes, of their own accord. Given the statistics that GAO has released, their track records on self-governance do not inspire particular confidence, but with new streams of money coming to student-athletes programs have a heightened responsibility to ensure that they are not creating gendered economic classes within their athletic departments. If they do not take these commitments seriously, the coming years may hold levels of inequality, with serious financial implications, that fly in the face of over fifty years of progress.
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