After 50 years, Title IX compliance in college sports still lags. The reason? ‘It has no teeth’

The advocacy hotline at the Women’s Sports Foundation would ring frequently back in the day, and concerned voices of parents would hum through it. They didn’t know much about Title IX, the watershed law prohibiting sex-based discrimination in education. But they knew inequity when they saw it, and college sports, for decades, have been rife. Thousands of girls have enrolled at dream schools only to encounter inferior facilities, equipment and treatment. Into the 21st century, their parents would call the Women’s Sports Foundation and ask: What can we do?

And they’d get a response that, 50 years after Title IX’s passage, helps explain why the inequities persist.

They’d learn that Title IX requires athletic departments to offer opportunities equitable in both quantity and quality. But they’d also learn that their two routes to justice were through the federal government or lawsuits.

They’d worry that either route could turn their daughters into pariahs, the subjects of ire and veiled retaliation from powerful schools and their most powerful actors. “I don’t want my daughter to be hurt,” they’d say. Those daughters would worry, and still do, that suing their school could cost them playing time or a future career.

“Even though Title IX has a provision that prohibits retaliation, the fact of the matter is, kids are not gonna bring a Title IX complaint unless you drop their sport,” said Donna Lopiano, a longtime administrator and former Women’s Sports Foundation CEO.

And so, despite decades of insistence from the government that Title IX applies to college sports, and decades of reinforcement by courts, gender gaps remain wide.

Nearly 60,000 more men than women played NCAA sports last year. Division I schools spend less than half as much on women’s sports as on men’s sports. Over the years, the outsize revenue that football and men’s basketball generate has been cited to justify the imbalance, as have donations earmarked by boosters for certain sports, but the law makes no exceptions for financial motivations.

A Yahoo Sports analysis of 2020-21 data found that over 80% of Division I schools did not offer women participation opportunities that were “substantially proportional” to their presence in the student body — the primary prong of Title IX’s core compliance test.

“It’s ridiculous,” said Judy Sweet, a pioneering NCAA administrator and gender-equity advocate, with frustration spiking her voice. “It’s been 50 years, and we’re not in compliance with a federal law. That is absurd.”

And yet, she and others say, it’s unsurprising, in part because the law isn’t proactively enforced.

The U.S. Department of Education (DOE), and specifically its Office for Civil Rights (OCR), wields the power to police Title IX compliance. But its work is largely reactive, in response to formal complaints from students and those around them. Its approach leans on athletes — on historically marginalized female athletes, the very people who Title IX was enacted to protect — to recognize violations and challenge a male-dominated college sports power structure that often fails to educate those athletes about what, exactly, their rights under the statute are.

“That’s honestly the biggest problem,” said one Power Five athlete, who spoke on the condition of anonymity because she feared retribution from her school. “There’s no education. There’s no talk of [Title IX], more avoidance than anything.”

The NCAA, which some advocates wish would enforce Title IX, deferred back to the DOE when asked about its role. Catherine Lhamon, the DOE’s assistant secretary for civil rights, said in an interview that her office has been “very aggressive” and “very active” in enforcing Title IX in athletics. But she acknowledged that, with thousands of complaints covering various forms of discrimination flooding the OCR every year, most of its work is “complaint-driven.” She also said at a sports industry summit last month that the law is “enforceable by students, parents, families, it’s enforceable by leaders at schools.”

But most student-athletes and their parents don’t know what they’re entitled to, and equity advocates have argued for decades that schools will not just “do the right thing” unless forced. Title IX regulations technically threaten to withhold federal funds if schools don’t comply, but, as Lhamon pointed out, “by statute, we are required to give schools multiple opportunities to come into compliance before we can impose a penalty.”

In 50 years, although thousands of investigations have found noncompliance, the penalty — “our one tool,” Lhamon called it — has never been levied.

So schools don’t fear it, and although many have taken significant steps to promote women’s sports, this, experts say, is one of Title IX’s biggest flaws. Several sources, from attorneys to coaches to professors, used the same phrase: The law, they said, “has no teeth.”

How compliance with Title IX is determined, and why noncompliance is hard to prove

In 1979, amid widespread confusion and pushback on Title IX’s application to sports, with some 100 complaints already filed alleging gender discrimination in athletics, the Department of Education issued the policy interpretation that has defined compliance almost ever since. Colleges, the DOE ruled, had to provide equity in three categories: participation, scholarships and benefits.

It then established what equity meant. It reaffirmed benefits included equipment and supplies; travel and per diem; coaching and academic tutoring; locker rooms; practice and competitive facilities; medical and training facilities; housing and dining facilities; publicity; recruitment; and support services.

Perhaps most influentially, it detailed what became known as the “three-prong test.” To provide equitable participation opportunities, a school had to do at least one of three things:

1. Serve male and female athletes “in numbers substantially proportionate to their respective enrollments.” (So, if a school’s student body is 52% women, then roughly 52% of its roster spots should be for women. As long as any discrepancies are smaller than an average-sized college sports team, the school is complying with Prong 1, and needn’t worry about the other two.)

2. “Show a history and continuing practice of program expansion” for “the underrepresented sex.”

3. “Fully and effectively” accommodate “the interests and abilities” of the underrepresented sex.

Schools have, over time, complied via each of the three prongs, but the latter two are vague and increasingly outdated. Attorneys who’ve litigated Title IX cases argue a true “history and continuing practice” of adding women’s teams should, over 50 years, have led to proportionality. And with 3.4 million girls playing high school sports in 2018-19, the last season for which data is available, “if the school wants to add a women's sport, they will find women to participate in that sport,” attorney Jill Zwagerman explained. Thus, more so than ever before, “substantial proportionality” has become a requirement.

Yet, most Division I schools do not meet it. Their roster counts used to tabulate compliance are not public, but under the Equity in Athletics Disclosure Act, they must report an early-season snapshot the DOE publishes. Despite artful manipulation of that snapshot — many colleges double- and triple-count runners, pad women’s rowing rosters and count male practice players as women — a Yahoo Sports analysis of 2020-21 EADA data found that 82.5% of D-I schools would need to add more than 15 women’s roster spots to match the gender demographics of their student bodies.

Some Power Five powerhouses — most notoriously, the University of North Carolina — would need to add hundreds. In total, 308 of the 348 D-I schools would need to add a total of 35,797 women’s roster spots to achieve full proportionality. (Female athletes were overrepresented at those other 40 schools by an aggregate count of 1,123.)

Those numbers are likely an underestimate. They also aren’t the full story. Athlete testimony from across major college sports suggests that in the “benefits” category, the experiences of men and women are often unequal.

Most of the assessment is qualitative, which makes noncompliance more difficult to prove, attorneys on both sides acknowledge. But budget disparities can be red flags. Title IX explicitly does not govern spending, but advocates argue disparate spending typically leads to disparate benefits. A USA Today analysis found that, even with football excluded, for every dollar spent on travel, equipment and recruiting for select men’s teams, FBS schools spent just 71 cents on the corresponding women’s teams. In 2018-19, according to EADA reports, Division I schools allocated just 28% of their overall recruiting budgets to women’s teams, and paid their coaches of women’s sports roughly half as much as coaches on the men’s side.

When asked what percentage of Division I actually complies with the law, Lhamon, the OCR chief, said “most schools across the country have some room for growth with respect to civil rights complaints.” She said it’s “very rare” for an investigation stemming from a complaint to find full compliance.

Yet, the OCR rarely seeks out more investigations. It can conduct “compliance reviews,” but its jurisdiction — which also includes secondary schools, non-sports Title IX cases, racial discrimination cases and more — is vast, and therefore its resources limited. College sports represent a small percentage of the complaints it receives. Investigations are thorough, and often take years to resolve. The office’s docket of pending athletics cases lists 11 at Division I schools — including the University of North Carolina and the University of Miami — with some dating back as far as 2015.

Its library of resolved cases includes at least 25 at Division I schools since 2010, but even in those cases, the outcome is a “resolution agreement.” The school vows to take necessary steps to address inequities — some of which nonetheless persist.

The University of Kentucky signed one such agreement in 2016-17 after a yearslong OCR review found noncompliance in the participation and scholarship areas. It promised to comply by 2018-19. In 2019, two UK students sued the school, alleging it would still need to add 183 female athletes to reach proportionality. A Yahoo Sports analysis of EADA data suggests the number has risen since. A Kentucky spokesman said in a statement, “the University is in full compliance with the law,” and referred to legal filings in which lawyers argue the athletic department “fully and effectively accommodates the interests and abilities of its female students.”

Lawsuits alleging noncompliance have usually been successful, and often lead to the addition or retention of women’s teams. In 2020, two years after the resolution of an OCR complaint alleging widespread discrimination at Iowa, the university cut its women’s swimming and diving program. Four swimmers sued, and in a settlement, Iowa not only agreed to reinstate the team, it committed to adding women’s wrestling, too.

Lawsuits, though, are rare, in part because of power dynamics and in part because most athletes don’t know their rights or the tools at their disposal.

How lack of knowledge about Title IX allows noncompliance to persist

With the 50th anniversary of Title IX approaching, researchers set out to understand just how much the American public knew about the 37-word statute that has transformed women’s sports. The Pew Research Center found 87% of U.S. adults know “a little” or nothing. An Ipsos poll found 71% of kids aged 12-17 know nothing about the law.

When they enroll at colleges a few years later, according to interviews, surveys and published policies, most students are taught about Title IX’s application to sexual assault and harassment, but relatively few athletes are taught about its application to sports.

Universities are required to employ campus-wide “Title IX coordinators,” but not athletics-specific Title IX officers. Just 19% of Division I athletics administrators with Title IX-related responsibilities who responded to one 2020 survey reported they gave face-to-face presentations on sports-specific regulations to athletes. One of the many athletes who didn’t receive one, an upperclassman at a Power Five school, said she and most teammates had heard about Title IX, but “I didn’t realize how little I knew about it until” Yahoo Sports contacted her.

And that’s “because of the administration,” she clarified. “Like, it’s not because of me not studying fifth-grade history.” The inequities she encountered, she now feels, were “meant to be something I was supposed to accept.”

She also didn’t “know who to go to, and what to do if I thought there was a Title IX violation.” Advocacy groups like Champion Women have tried to provide young athletes with the resources to recognize noncompliance, and to challenge it.

“But then what you’re saying is, OK, it’s up to 18- to 22-year-olds to rectify this gap,” said Nancy Hogshead-Makar, the Champion Women CEO. “They don’t want to feel like they’re in conflict with this school that they have done everything they can to get admitted to, and to make friends, and to make all these connections. They don’t want to lose that.”

When the COVID-19 pandemic sapped revenue and led colleges to cut both men’s and women’s teams, some female plaintiffs sued, and won in court because their schools were not offering equitable participation opportunities. In the absence of cuts, though, “they have too much to lose,” Lopiano said.

The Power Five upperclassman also explained that, as underclassmen, she and other female athletes ride “a high” that stems from free gear and treatment well beyond what they ever experienced as kids. “It’s Christmas,” she said of the early months and years, and they’re thankful. It isn’t until they “come down from the high,” as they become sophomores and juniors, that “disgusting” differences in benefits for male and female athletes become more noticeable.

And even if they did notice earlier, “we don’t know what to do about it,” she said.

Why the NCAA and Congress can’t do more to enforce Title IX

Some women’s sports advocates have criticized the Department of Education for what they see as a leniency, and for an approach that shunts the enforcement burden onto athletes. When Lhamon, the OCR chief, hears that criticism, she’s surprised.

“I have been charged with being too aggressive,” she said. “I’ve rarely been charged with being insufficiently aggressive.”

She has, over time, received blowback from a “laundry list” of people and institutions, including schools who “resist the federal oversight,” she said. Ever since Title IX’s passage, and especially in the early decades, the law and the DOE’s interpretation of it have been challenged in court regularly.

Harsher penalties for noncompliance, therefore, are politically risky. Big-time sports schools derive power from millions of fans who double as voters.

“I think that what, say, the Clinton Administration found out was that it cost them too much in political capital to get equality in athletics,” Hogshead-Makar said. “They really got so much pushback from schools and the legislators who [represent a school’s] district.”

Harsher penalties are also legally unfeasible, given the 1979 policy interpretation’s language. Federal funds may only be stripped if “voluntary compliance attempts are unsuccessful” — and then only after a “formal process,” which includes “the opportunity for a hearing before an administrative law judge,” has been exhausted. Lhamon, who implicitly cited that interpretation, said she feels “really good about what we’re doing.”

Some advocates mention the NCAA could do more. Specifically, it could make compliance with federal laws a condition of membership. But when questioned, an NCAA spokeswoman wrote, in part, “Title IX is a law, not a voted-upon NCAA rule.” In fact, an NCAA rule would require approval from member schools — many of whom would be voting to enforce a law with which they don’t comply. In some cases, the NCAA’s own roster minimums and scholarship maximums can make compliance more difficult.

The solution, then, must be congressional, Lopiano argued. The Senate and House could put forward an amendment or a new bill that gives Title IX teeth. On Thursday, Sen. Chris Murphy (D-Conn.) and Rep. Alma Adams (D-N.C.) announced plans to introduce one such bill, the Fair Play for Women Act, which would extend Title IX's application to college conferences and the NCAA, and allow for fines of "colleges that are violating Title IX," Murphy said.

The biggest barrier, Lopiano said weeks ago, will always be that “state flagship universities still have great sway over Congress. Constituents still want Alabama to win.”

California State Senator Steven Bradford learned this the hard way a few months ago. He introduced legislation that, in part, threatened athletic directors with suspensions if their programs weren’t Title IX compliant by 2026. He told Sportico that he “didn’t hear [opposition] from a single female athlete or coach of female athletics,” but said schools like USC and UCLA fought against the proposal and undermined it with “fear-mongering.” As a result, all gender-equity language disappeared from the bill before its first senate hearing.

There’s no question, most advocates agree, that Title IX’s impact has been massive, and state universities, like the OCR and NCAA, have played a part.

“There’s no question that we have generations of women now who are more successful in corporate America because they’re stronger, they have stronger self-images, they’ve gotten their confidence through the same developmental experiences as boys, and that makes a difference in life,” Lopiano said.

“But the question is, is it equal? No.”

“I think for the first 50 years of Title IX, culturally, there was a sense that even if schools were not completely in compliance, as long as they were taking steps to comply, they would be OK,” said Ellen Staurowsky, an Ithaca College professor who has studied gender equity in sports for decades. “But 50 years out, I think more and more, schools are going to have some explaining to do.”

Jeff Eisenberg contributed reporting.