To comply or not to comply?

The Dilemma Surrounding Title IX

By: Tara Lynch

In a corner office with a window overlooking the swimming pool sits a large poster of Billie Jean King, Title IX advocate and champion. Just below on the window sill sits a small frame with a short poem inside. Continuing with the theme throughout the knick-knacks displayed is Ralph Waldo Emerson's poem, "Success", which sits nestled between various photos of family and friends.

 

Susan Bassett is a former athlete at Ithaca College and currently serves as the associate vice president and director of Intercollegiate Athletics and Recreational Sports. During her time as a Bomber, Bassett experienced the Title IX movement, which began during her primary and secondary school career. After the civil rights movements of the 1960s, Congress drafted and made Title IX into law in 1972 to the celebration of women everywhere. The law called for academic institutions that receive federal funding to eliminate discrimination based on gender in any educational program or activity. After years of fighting, there was an opportunity for women to be fully equal in the law and society.

 

In order to receive Title IV federal funding for student financial aid and grants, colleges must comply with Title IX regulations. This amendment was an element of the Educational Amendments Act of 1972, which is under the jurisdiction of the Department of Education and the Office for Civil Rights. In 1979, the Office for Civil Rights released a policy interpretation, which colleges and universities use to comply with Title IX regulations.

 

This law encompasses many aspects of a college campus, including general gender discrimination in athletics, educational opportunities, and sexual assault and misconduct. More recently, there has been an increased focus on compliance issues in regard to sexual harassment, assault and violence, allowing the athletic and activities component of Title IX to fall by the wayside.

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Although a federal law, Title IX uses very general language and provides a very nonspecific set of rules for colleges and universities to follow because there is not an easy-to-follow guide on how to implement the law. Nan Pasquarello, Title IX coordinator at State University of New York at Cortland, notes that following the law can be problematic, especially because every school does it very differently.

Ithaca College Athletics and Events Center (Lynch 2019)

“It is complicated. It is not like we all pick out a playbook and play by the same rules because it is an ever-changing landscape. Society evolves,” Pasquarello said.

 

Title IX comprises a series of prongs performed by institutions across the nation. Enforced on the honor system, the law is a very ambiguous and subjective process.

 

According to the Office of Civil Rights, the three-part test is administered to ensure an institution is in compliance with the laws. The tests include proportionality between male and female athletes as compared to the overall student population, athletic financial assistance and treatment of the athletes.

 

Colleges complete the compliance process every year. The proportionality test seems to be the most common to comply with, as both Ithaca College and Cortland follow that prong. This includes reporting participation statistics, roster numbers, sport funding reports and coach salary values, which is among other financial data that becomes public via the EADA  report.

According to the Women in Sports Foundation, the proportionality test includes a comparable ratio of female to male participants in the athletic program as compared to the overall college. Also, this element can be met by demonstrating a history and continuing practice of adding athletic programs for the underrepresented gender. Finally, proportionality can be achieved by accommodating the interests and abilities of the students.

 

Bassett notes that from a young age, girls do not focus on athletics because of socialization techniques in society, which adds to the systemic problem in the United States. Sometimes, it can be difficult to have a proportional number of male and female athletes on a college campus.

 

Although Ithaca College follows the proportionality tests, Bassett is not an advocate for them. “One of the reasons I do not love proportionality as a measure is because I can’t manage what our culture says. Our culture is still telling girls and women not to be muscular or powerful. That is not the land I live in.”

 

In a study published by the Journal of Sports Behavior, researchers note that team sports related to aggressiveness, stamina or competition create the perception of masculinity whereas individual sports requiring grace and beauty are feminine sports. “These typologies reinforce ideas of difference; they showcase constructions of men as stronger and faster, thus deserving a higher rank in the overall social order, than women.”

This directly aligns with Bassett’s perception of females in athletics. Both of these sources demonstrate the stagnation of the system. With a smile on her face, Bassett recalls that Ithaca College was farther ahead than most schools, but the college still had its fair share of equity problems.

 

The field hockey player and swimmer says this moment has stayed with her throughout her time as athletic director and keeps her driving forward into the future. Bassett grew up with this law and has evolved right alongside it; however, the misconception of equality has remained.

 

“In the fall of 1977, the field hockey team qualified for the AIAW championships and the school [Ithaca College] wouldn’t pay for them to go…Friends of mine reminded me of this when I got the job here. They were so mad and went to the president’s office, and he denied the support,” Bassett said.

 

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During the birth of Title IX in the 1960s and 70s, advocates for the law hoped to achieve full equality. Today, schools across the county and world still have a long way to go. Bassett notes that equity is more attainable than equality, something that directly contradicts the intended goals of the legislation.

 

“I firmly believe and my philosophy is for gender equity as a fundamental value,” Bassett remarked. “It is absolutely the foundation of who we are. It is like the air we breathe.”

 

Equality is very black and white, meaning there would be an equal ratio of male to female athletes; however, this is very hard to attain. Colleges and universities strive for equity, which is being fair to all athletes and teams. While equality has remained the overarching goal of the law, it seems that through the ambiguous compliance process it is nearly impossible to achieve full equality.

 

“Title IX is a law. Gender equality is an aspiration,” Bassett claims.

 

These tests are administered without direct vigilance from the Department of Education. Ithaca College President Shirley Collado is concerned with the direction of the government, particularly on issues surrounding Title IX. She believes the government needs to take a more active role in monitoring how all colleges run their Title IX offices. As Pasquarello said, there is no common “playbook.”

 

“I am very concerned about the direction the U.S. Department of Education is taking to move away from hyper-vigilance around Title IX in athletics and overall at colleges and universities. We like to believe that all colleges and universities will be compliant,” Collado explained. “I think we are moving in a direction that is completely against what so many people fought for decades ago.”

 

“Title IX is a law. Gender equality is an aspiration.”

 

Historically, Ithaca College has been on the foreground of implementing change, but there were still challenges female athletes had to overcome during this era. The football and baseball teams were constantly competing at a very high level in NCAA post-season play. Still, athletes like Bassett were able to push boundaries and use this experience to inform their current actions.

 

In this corner office overlooking the pool, the ideals of King reign true and firm. After pointing to the poster, Bassett recalled her interview process before her return to Ithaca in 2013. Coach after coach wanted to return to the good ole days when Ithaca was winning major championships on the national stage.

 

“We are not going back anywhere. I have no interest in going back to a time where everything was built around football, baseball and anything Doris Kostrinsky [former softball coach] coached,” Bassett replied. “I want students at Ithaca College to have the opportunity to reach their potential through an engaged, comprehensive educational experience that we provide through participation in athletics. I want it to be meaningful and enriching.”

 

While administrators like Bassett do not intend to revert back to old practices, there is another obstacle surrounding this legislation: language. The amendment itself is very straight forward, leaving no room for interpretation; however, the terms surrounding the law in the interpretation guides by the Office for Civil Rights and the NCAA do not provide any clarity on how colleges should comply with Title IX. Phrases such as “opportunities,” “demonstrated growth” and “proportionality” provide little understanding to how colleges and universities should enforce regulations, which is a cause for concern for many involved.

 

As seen in the NCAA Equity and Title IX Manual, the Office for Civil Rights has clearly outlined their goals for future implementation of Title IX, but the language used does not provide clarity as to how to achieve these goals. One of the goals listed states, “Demonstrated efforts to monitor developing interests and abilities (and timely reaction to the results of those efforts).” While it is noble to have the school and the government monitor these “developing interests,” it is not possible to do this at every college and university in the country. This is where Title IX fails. The language used promises one course of action, but in reality, the goals listed are lofty and unattainable.

Ithaca College has been very progressive on these types of issues and, as a private school, the college has more jurisdiction on how these laws are implemented on campus. At a nearby college, the narrative is a bit different. State University of New York at Cortland created a five-year periodic review process that encompasses the thoughts and opinions from many campus groups, faculty members, and administrators. This process is utilized to understand how Cortland is going to be in compliance with the prongs. It also follow up on their progress from the most recent report. Alongside this internal research, the college also looks beyond Cortland and New York State to assess what the

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regard to this law.

 

“One thing we do during our compliance review is we look at what is under review by the Department of Education and how are they determining these complaints. We also look at private lawsuits against institutions, which helps guide schools,” Pasquarello said.

 

Ithaca College does not complete these internal tests; however, Bassett is not afraid of this process. The college submits the required forms to the EADA and believes in its sports equity model.

 

In order to meet the interest prong, Cortland conducts various surveys with its prospective and current students. For prospective students, the university attempts to understand how athletics will affect a student’s decision to attend a specific college and what sports these students are interested in. Current students complete a similar survey asking them their athletic participation level at the college since enrolling. Pasquarello believes this is the best way to meet the needs of the student population.

 

Pasquarello continued, “We want to ask not only the students who are here, but the students who are thinking of coming here because those voices help to shape the future. If you're not responsive to your prospective students, then you're not responsive.”

 

Compliance can fall through the cracks and the situation becomes increasingly messy. There are huge financial penalties associated with lawsuits and the reconstruction of the athletic program, which is imposed by the Department of Education Office of Civil Rights and the NCAA. However, imposed sanctions are often a response to a lawsuit filed against a college.

 

It is difficult to decide if a school is complying with this law, as the letter is very ambiguous despite the policy interpretation from 1979. No school administrator will admit that a college or university is out of compliance because of the significant financial implications. It may be up to researchers to run the numbers and decide if a college is in compliance, as seen by a report in The New York Times. A third-party organization will have a non-biased approach to conclude if a college or university is abiding by federal regulations.

 

Usually, current or former student athletes note when colleges fail to comply with Title IX. The first step in this process is to file a lawsuit against the specific institution. At this juncture, the Department of Education Office for Civil Rights steps in and creates a timeline for the college to comply. Alongside this, colleges and universities face severe financial repercussions when compliance is broken. Plaintiffs will require damages and institutions will often have to rebuild facilities, create new athletic programs, or find a new way to increase the number of female athletes. Title IV federal funding is rarely pulled from colleges and universities, but the added costs of the lawsuits add up.

 

“The federal government will have a binding resolution agreement [after a lawsuit] where the college agrees to do something differently. If a person sues an institution and wins a personal claim, the institution may have to pay damages,” Pasquarello added.

                 

In recent years, Ithaca nor Cortland were investigated for extreme violations of Title IX, but there have been various civil suits related to the proportionality test.

 

The federal government is reactive instead of proactive; however, it is unlikely that the system will change. There needs to be a level of honesty in the compliance documents from each college and university.

 

Pasquarello is proud of Cortland’s process. Despite the amount of work the periodic review process takes, she believes it is worth it because the entire campus works together as a task force. She notes that Title IX is always on people’s minds because the review process is frequent.

 

By being on top of new compliance requirements, colleges and universities across the nation can work toward moving from a system of equity to one of equality.

 

Since the creation of Title IX, society changed, leading to the discovery of new problems within the system. The law was a beginning not an end to gender equity problems in the United States. Currently, the law is being revisited to adjust for transgender athletes and other LGBTQA+ issues that have been raised over the last few years. Since the creation of Title IX, society has embraced gender fluidity, requiring the law to be reinterpreted so that no school denies athletes the ability to participate. Overall, many lawmakers are focusing on strengthening the law to decrease the number of sexual assault and harassment violations.

 

Collado said, “Overall, we review Title IX regularly. That is the standard. It is important because Title IX regulations are changing all of the time and they are being modified all the time. An example of this is the role of transgender athletes and a lot of new issues surrounding the LGBTQ community. There are all kinds of things that we cannot be complacent about, but we want to be really on top of.”

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Office for Civil Rights FOIA information about Title IX lawsuits from 2013-2018.

Ultimately, the problems within the legislation lie in the lack of continuity in the interpretation and implementation of the law. Every college and university has a different set of biases that influence its application of Title IX. Is there a perfect interpretation?

 

Without hesitation, Bassett replied, “Absolute equivalence across the board with staffing budget and facilities. For us to get there, we would have to get a lot smaller.”

 

Underneath the gaze of King, Bassett feels like there is still a long way to go. But her attitude remains the same.

 “…We are working towards being the best in every sense of the word. As good as we may be, whether it is from a Title IX, gender equity or performance perspective, I am always going to think we can be better,” Bassett said.

Ithaca College and Cortland share the same mentality. Both schools want to improve, something Bassett refers to as the championship mindset. The steps to improvement may look different at each school, but the Title IX coordinators and athletic offices look to make changes each day. Cortland plans to continue its periodic review process, taking a close look at how the university complies with the law. Ithaca College also plans to work as a team to make gradual improvement each season, and the college is hopeful to move from a system of equity to equality.

 

“We want to have a championship mindset, which means continual improvement, being curious and having a growth mindset,” Bassett concluded.

These two schools note the difficulty of compliance. These are two of the thousands of Title IX interpretations across the country. However, both unite under the idea that there is still a long way to go.

 

Back in that corner office, Bassett sits scrolling through her phone looking for the perfect photo to share. Her smile wide, eyes focused and heart determined. Back in that office, there is a young field hockey player ready to light the world aflame.      

Susan Bassett 1975 FY starting half back

Photo Courtesy of: An Ithaca College Fan 1975: Bassett starting halfback for Ithaca College Field Hockey.