"Nobody's Watching": Are Major College Sports Programs Treating Title IX Like A Suggestion?

Three weeks ago, Ken Starr was stripped of his position as president of Baylor University and later stepped down as chancellor following the release of an independent report summarizing the school's extensive failures implementing Title IX in cases of sexual assault, particularly those involving athletes.

However, this isn't the only instance of Baylor falling short of apparent Title IX requirements under Starr, who had been in charge of the school for six years.

During a 2014 congressional hearing on college sports, he was asked about the significant gap in athletic aid money, in the form of scholarships, between men and women at the school. In 2013, Baylor spent just 44 percent of its athletically related aid budget on women, even though they made up 58 percent of all university athletes.

Under Title IX, the 1972 law prohibiting gender discrimination at schools that receive federal funds, the Department of Education mandates that "the total amount of scholarship aid made available to men and women must be substantially proportionate to their participation rate."

Abandoning plain English for equivocal gobbledegook, Starr nevertheless admitted the 14-point gap was an issue.

"Well, that is a very fluid and dynamic process, so it may change from year to year," he said. "But if there is in fact a disparity, and I accept what you've said, it has to be addressed, so we have to come forward with explanations as to why there may be a temporary disparity."

Contrary to Starr's claim, that disparity doesn't appear to be temporary. Two years later, it has increased: according to the most current data submitted by the university to the Department of Education under the Equity in Athletics Disclosure Act (EADA), just 43 percent of the Bears' athletic aid goes to women, even though they still make up 58 percent of its athletes. (Baylor did not respond to a VICE Sports request for comment.)

When it comes to apparent gender disparities in college sports, Baylor is not alone. A VICE Sports analysis indicates that many NCAA Division I athletic programs may not be fully compliant with Title IX.

● According to EADA data, 46 percent of Power Five conference schools have a proportional athletic aid gap of two percent or more—a gap considered noncompliant under Title IX without additional explanation and justification.

● EADA data also indicates that 18 percent of Power Five schools fail to come within ten percentage points of matching female athletes' participation to the proportion of women enrolled at the university—gaps that by themselves don't necessarily indicate Title IX noncompliance, but according to the National Women's Law Center should be considered "red flags."

● Some schools appear to comply with Title IX at least in part by overstuffing the rosters of inexpensive sports such as women's rowing and counting the male practice player opponents used by many teams as female athletes.

VICE Sports contacted 30 schools seeking further explanations for the discrepancies. Of the 12 that responded, 11 said that they were, in fact, Title IX compliant.

Some of those schools said that the data collected under EADA—the most comprehensive information available to the public for looking at gender equity across all NCAA schools—is not necessarily the same as the data used to determine Title IX compliance, and can produce incomplete or inaccurate snapshots of their programs. Schools also cited specific reasons for the discrepancies, like variance in in-state and out-of-state scholarships, that they said were not discriminatory.

However, critics such as Title IX attorney Kristen Galles argue that the overall picture revealed by VICE Sports' analysis reflects a college sports landscape that is not yet truly equitable—one in which a number of university athletic programs are treating Title IX like a suggestion, in part because the federal government does not vigorously investigate and enforce the law.

"Nobody is watching," said Galles, a Washington, D.C.-based attorney who has worked with the National Women's Law Center and the American Civil Liberties Union.

There's no question that Title IX has profoundly changed campus athletics. In 1972, the year the law was passed by Congress, fewer than 32,000 women played intercollegiate sports, compared to more than 170,000 men, and they received only two percent of schools' athletic budgets. Athletic scholarships for women didn't exist. The National Collegiate Athletic Association didn't hold championship games for women.

With Title IX, the federal government aimed to change that by forcing schools to increase opportunities for women. Schools at all levels were required to assess and then meet demand for sports among female students. Moreover, men and women had to have equal access to facilities and equipment, and universities were required to spend athletic scholarship dollars in proportion to each gender's participation.

To a certain extent, the law has worked. In 2013-14, the number of female college athletes exceeded 205,000—a more than six-fold increase since Title IX was enacted. In 2010-11, women received 48 percent of the total athletic scholarship dollars at NCAA Division I schools. The association holds championships for women in 19 Division I sports (plus two co-ed sports), and the women's basketball tournament is a major television event.

Nevertheless, inequities remain. On the eve of the 40th anniversary of Title IX, the National Women's Law Center reported that while more than half of the students at NCAA schools are women, they received only 44 percent of the athletic participation opportunities. Female athletes at big-time Division I football schools (including today's Power Five conferences) received roughly 42 percent of total athletic scholarship dollars, 31 percent of recruiting dollars, and only 28 percent of the total money spent on sports.

According to a VICE Sports analysis of EADA data for 2014-15, the most recent reporting year, at 30 of the 65 schools in the Power Five conferences the proportion of athletic aid awarded to women falls short of their participation rate in sports by two or more percentage points. At 16 of those schools, the disparity is at least five points. Baylor had the largest gap, with 15.

According to the Office of Civil Rights in a 1998 Dear Colleague letter, "there will be a strong presumption that an unexplained disparity of more than 1% is in violation of the 'substantially proportionate' requirement" of Title IX.

VICE Sports reached out to all 30 schools on this list for comment. Of the 12 schools that responded, 11 claimed that they were Title IX compliant. (These were Northwestern University, University of Pittsburgh, Oklahoma State University, University of Colorado, University of Kansas, Purdue University, Duke University, Michigan State University, Notre Dame, Washington State University, and Texas Christian University.)

A number of schools claimed that their EADA reports did not tell the full story. Schools must report all athletically related financial aid, which includes aid for students in summer school and those who have exhausted their eligibility—both of which typically aren't counted for Title IX. Medical hardship waivers, where student-athletes receive financial aid but don't count toward roster spots, can also skew the reports. For example, Oklahoma State told VICE Sports that it received seven medical hardship waivers (six for men, one for women) out of 496 total athletes in 2014-15. OSU's independent expert found its gap to be less than the five percentage points indicated on the EADA report, though still "slightly above" the one-percent threshold mandated by OCR. Michigan State University said its numbers show a 2.6-point gap, not the five-point gap shown in the EADA report.

While citing similar concerns about EADA not being "comprehensive," the University of Colorado said, "We are aware of the discrepancy in the EADA participation rates and financial aid and will take all necessary action if it indicates that the university is out of compliance with Title IX."

There can be valid, nondiscriminatory reasons for the discrepancies, such as there being more male athletes attending a public university from out of state, and hence needing more aid, in a given year. This was one reason cited by Kansas, for example, whose eight-point gap in 2014-15 is the same as it was in 2010-11, as well as Purdue. "If we received tuition waivers for out-of-state scholarships (as many schools do, Purdue claimed), there wouldn't be any difference," Barbara Kapp, the senior associate athletic director for business at Purdue, said.

According to the OCR, a school would "be required to demonstrate that its asserted rationale is in fact reasonable and does not reflect underlying discrimination," such as recruiting practices that favor one sex over the other.

Purdue told VICE Sports that it budgets for proportional spending each year but that variance in how many women's scholarships are used results in spending disparities. Washington State University also said that its two-point gap reflects random variation. But the 1998 Dear Colleague letter states that random chance is not necessarily a legitimate excuse, either: "In the typical case where aid is expressly allocated among sex-segregated teams, chance simply is not a possible explanation for disproportionate aid to one sex."

In Washington State's case, two percent of spending is still $192,594 in inequity.

Duke University said that it is adding sports and "taking steps" to ensure all scholarships allowed by the NCAA are awarded in non-revenue sports. Notre Dame explained its three-point gap by saying that all of its available scholarships for women's sports were awarded. However, that does not mean the university is meeting its Title IX obligations. If the school is fully funding women's scholarships and still hasn't reached a point of equity, then it may need to look into adding sports.

The only school to admit non-compliance was Florida State, which has a nine-percentage-point gap in athletic aid spending and an 11-point gap between the proportion of female athletes and women's share of overall enrollment at the university.

When asked about the disparity, a spokesperson initially argued that VICE Sports was not being "fair and balanced." But when confronted with the numbers, senior associate athletic director Vanessa Fuchs offered this statement:

"The university hasn't yet reached all of its Title IX goals, but it has made considerable progress in recent years, including facilities upgrades for men's and women's sports and the addition of a new sport—women's beach volleyball.

"Florida State championed the sport nationally to help build it to the participation level needed to be a sanctioned NCAA Championship sport, which it became in the 2016 season, when FSU reached the national title match. At the same time, Athletics began exploring the possibility of adding another women's sport and is actively engaged in pursuing that. This would result in the addition of a substantial number of new scholarships for women."

However, adding a sport does not necessarily address the very large gap in athletic aid spending. For example, beach volleyball has an NCAA-mandated scholarship limit of three, and Florida State reports 21 beach volleyball players.

Proportionate athletic aid is one component of Title IX; providing both sexes "equal opportunities" to participate in sports is another, completely separate but equally required one. Unlike with scholarships, which basically involves asking a single question—Is the athletic aid awarded in proportion to participation?—participation is governed by a so-called "three-part test," and schools need to fulfill just one part to be considered Title IX compliant.

Under the statute, schools must demonstrate that either women's sports participation is proportional to overall women's enrollment, that they have a history of expanding opportunities for women to participate in athletics, or that there is not unmet demand for women's sports (assuming, in all three cases, that women are the underrepresented sex in the college's athletics program).

"The [federal Office of Civil Rights] has always tried to make some effort to keep participation numbers in the range of closeness," Title IX lawyer Tom Newkirk said. "The problem is that five percent or nine percent (off the requirement) might seem like a lot, but (it's) viewed under this sense of if it's close enough or is it continued progress."

In its analysis of the EADA data, VICE Sports found that 43 of the 65 power conference schools had less equitable participation than they did in 2011. Twelve schools failed to come within ten percentage points of matching female athletes' participation to the proportion of women enrolled at the university. The National Women's Law Center says that a ten-point gap should raise red flags. (Depending on the size of the institution, a smaller gap may still be the equivalent of an entire athletic team.)

"If a school is ten percent off, there undoubtedly is a gap," said Kristen Galles. "At 3 percent, there may or may not be. At ten percent there definitely is."

As long as these schools show that they've been improving, however, or that there is no demand for sports beyond what they already provide, they're still compliant. TCU, for example, falls 16 points short on participation equity (in addition to a five-point gap in athletic aid). When asked about Title IX compliance by VICE Sports, a public relations representative for the school said, "TCU complies with Title IX by showing a history and continuing practice of program expansion for women's sports."

It's true that TCU added a beach volleyball team in 2015—a squad made up of 15 participants that played in six tournaments over a two-month period—and that counts as its "continuing practice of program expansion for women." However, this "improved" participation does not exonerate TCU of its obligation in athletic aid spending. TCU did not address that in its response to VICE Sports.

If schools are ignoring parts of Title IX, that's partially because the government is, too.

According to Galles, the Department of Education has neither the resources nor the mandate to investigate or act upon the EADA data it collects, even when that data indicates that schools may be breaking the law. "It's not like there are Title IX police," she said. "There are no consequences for violating any of these laws unless somebody files a complaint.

"Every year, because colleges want to get Pell Grants and all kinds of federal funding, they have to sign a form that says we comply with Title IX. So they are telling the government every year that we comply, but in reality, nobody's checking.

"It's kind of like when you get those Apple updates, and you have to click to agree, but you don't actually read them."

Of the universities that do report compliance with Title IX in terms of participation, how they reach that conclusion deserves a closer look. Many of the numbers schools report appear to align with the purpose of the law—to improve educational and athletic opportunities for women—but tell a different story below the surface.

For example, Baylor claims that its women's athletic participation rate exactly matches women's enrollment. Dig deeper, however, and the university appears to have played a number of tricks to boost its numbers.

On its EADA report, Baylor lists 44 gymnasts, but the university doesn't actually have a gymnastics program. Instead, it counts "acrobatics and tumbling" athletes as gymnasts.

This is likely against federal law as it currently stands.

Baylor's acrobatics and tumbling program is relatively new—or at least its name is. Baylor changed the name of its competitive cheer program to acrobatics and tumbling in 2011, one year after a federal judge found that competitive cheerleading is not a sport, and that Quinnipiac University was in violation of Title IX for counting it toward women's athletics participation. The United States Department of Justice filed an amicus brief in that case against the university. The Second Circuit Court of Appeals affirmed the ruling.

"This name change provides a more representative description of the sport and aligns Baylor with the other institutions sponsoring this program," former Baylor athletic director Ian McCaw said at the time. The University of Maryland followed suit.

"They're not allowed to do that," Galles, who helped litigate the Quinnipiac case, said. "In my mind, it's just outright fraud, because it's not gymnastics."

Acrobatics and tumbling is recognized as a discipline by USA Gymnastics, but the Office of Civil Rights and the Department of Education—which initially supported the Quinnipiac decision—have never ruled that it is countable for Title IX.

"Until a court or the Department of Education or the Department of Justice decides otherwise, the Second Circuit ruling [on competitive cheerleading] controls," said Galles.

Defenders of acrobatics and tumbling say the sport should count, and it very well may in the future—something the appeals court in the Quinnipiac decision even acknowledged, saying it "might some day warrant" countable status "with better organization and defined rules."

"Athletic trainers will tell you, pound for pound, those kids are the most athletic kids on those campuses," said Kimberly Archie, a sport risk management expert. "It is insane to say to say these athletes and these teams are not athletes and this is not a sport."

The issue, however, is not whether the sport is athletically demanding but whether the federal government has decided sufficient infrastructure exists—like enough teams to support a full schedule—to provide women a genuine opportunity to compete and the benefits that entails. Right now, there is no documentation that the government has taken that step. And only 14 schools currently sponsor acrobatics and tumbling.

By counting acrobatics and tumbling as a sport, though, Baylor has 44 more women athletes than it otherwise would have—14 percent of its total. Maryland counts 19 such athletes, while the University of Oregon counts 45. Oregon writes in its EADA report that it counts those athletes "per Department of Education," despite the fact that the government seemingly has ruled that it can't do that. The Oregon athletic department did not respond to a VICE Sports request for clarification.

Critics say schools go to these lengths for a sport that doesn't count for Title IX purposes for one reason: because it's an inexpensive route to compliance. Acrobatics and tumbling is the second-cheapest sport on a per-athlete basis at both Oregon and Baylor.

While Title IX requires schools have substantially proportionate athletic aid budgets for men and women, there is no such requirement for equity in operational spending. On the one hand, this makes sense given that certain men's sports, namely basketball and football, require massive amounts of investment to continue to bring in massive amounts of revenue. On the other hand, it also allows schools to boost participation numbers for a relatively low cost, by padding the rosters of their least expensive sports.

The cheapest sport at Baylor, for example, is equestrian, with a cost of just $5,732 per athlete. Baylor has a whopping 68 female equestrian athletes. The average team size in Division I is 39, with just 15 scholarships available.

Florida State cited beach volleyball as a way it is attempting to reach its "compliance goals." Beach volleyball is the Seminoles' third-cheapest sport per participant behind both track teams.

Other schools have been criticized for boosting female enrollment in cheap sports in order to help participation numbers. The University of Iowa is currently being investigated by the Department of Education for a number of complaints of bias against women, including that it used the rowing team to boost its numbers.

"The University of Iowa was manipulating participation numbers by using the rowing team," said Newkirk, who is currently suing Iowa on behalf of former coaches alleging discrimination. "There are so many people that are willing to row that you put them on the team and bump it up."

The average size of a Division I women's rowing team is 67 athletes, with 20 available scholarships. Iowa reports an incredible 89 rowers. (And the state of Iowa is not necessarily a rowing powerhouse: it has just one competitive youth rowing option for high schoolers.)

The NCAA recognizes two rowing events: the eight-person boat and the four-person boat. Even after filling three eights and three fours, plus coxswains for each boat—the equivalent of first through third string—the Hawkeyes still have an additional 47 athletes, or over half the team, remaining, and all of them are counted toward Title IX compliance.

And at the University of Missouri, softball players are speaking out about what they perceive as an inflated roster, and blaming Title IX.

"Many players, players who are accustomed to being the best player on their former teams, have had issues coping with either lack of playing time or poor individual performances. This large roster size is not Coach E[arleywine]'s doing, but is required due to Title IX rules regarding women's athletics," members of the team wrote in response to a school investigation of their coach.

However, this is not a Title IX problem as much as it is a University of Missouri problem. Title IX does not require the university to inflate women's rosters; it requires them to provide an equitable number of opportunities for women to play sports, or that, if one gender remains underrepresented, its interests and abilities are fully accommodated (the third part of the three-part test).

Demand can be measured in different ways—whether it's demand of the typical student body, or from a national perspective—but schools deal with that demand inconsistently. Often, there isn't demand for particular sports in particular states, but that hasn't stopped schools in men's sports, particularly revenue ones. The University of Kentucky is a basketball stalwart, but without top local high school talent, it has more players from outside the country on its basketball team (four) than from inside its state (three).

Perhaps most ironically, schools also boost female participation numbers by including men. Fifty-two of Baylor's 320 female athletes, for example, are actually male practice players, who can technically count toward participation totals.

Women's basketball teams, for instance, will often have men simulate taller centers. But Baylor goes far beyond the intent of the rule. The Bears' women's basketball team counts over twice as many men (27) as it does women (13). The women's soccer team has 18 male practice players and 26 women who are actually part of the team.

"For PR purposes, maybe they want to look OK so maybe they'll play around the numbers to make it look close," Galles said. "But the reality is they're never going to get investigated unless someone files a complaint."

Despite what looks like possible failure to comply with Title IX's athletic requirements by a number of major universities, the Department of Education hasn't investigated any schools, and while it also has the power to withhold federal funding for non-compliant institutions, it has never actually done so.

Why not? The DOE did not respond to multiple VICE Sports requests for comment, but as Galles points out, investigations only begin when someone files a complaint. According to former University of Texas women's athletic director and Women's Sports Foundation CEO Donna Lopiano, people already inside college athletics are unlikely to rock the boat.

"Who is going to bring the pressure? Just think about that question for a while," said Lopiano, who currently works as a sports management consultant. "No. 1, it's an individual institution that is the issue. The coach is probably not going to bring it up, because the coach is afraid of losing their job. The athlete is probably not going to bring it up, because they're afraid of retaliation.

"It really is an impossible situation."

Similarly, the NCAA itself has no incentive to get involved. The association encourages member schools to be Title IX compliant, but it doesn't punish those who aren't. Every year, the NCAA requires DI members to submit financial reports similar to the EADA but it does not release them publicly—nor, apparently, does it act on any discrepancies that those reports contain.

"The best thing to do if the NCAA cared about Title IX at all … is to make Title IX eligibility a requirement for the postseason," Lopiano said. "You would think the NCAA would do something, but the NCAA [is made up of] institutions who are violating Title IX themselves."

So long as the Department of Education and the NCAA ignore a database full of what at least appear to be Title IX violations, the burden of holding schools accountable—of making complaints and filing lawsuits—will fall on college employees and students, who are arguably the least equipped to do so.

More than 40 years after its enactment, Title IX has undoubtedly expanded athletic opportunities for women in college and beyond, but the job of enforcing it is far from over. Looking at the landscape of intercollegiate sports today, the major question facing advocates seems less about what still needs improvement than who will bother to demand it.

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