Conforming to Title IX Requirements in the COVID-19 Era

By Christopher J. Buckler, CSCS
Faculty Member, Sports Management, American Public University

Due to COVID-19, athletic departments are going through the hurdles of quarantine, sickness, death and economic instability. The fear of college campuses re-opening, athletic events being held and returning fan attendance have caused even more instability for athletic budgets already pushed to their limits.

But how do athletic administrators operate under these circumstances and stay compliant to the Title IX regulations created to protect people against discrimination? COVID-19 has dealt athletic administrators a blow that is damaging at best and at worst, fatal.

Some Educational Institutions Have Closed Entirely or Eliminated Some Sports

In the past two months, stay-at-home orders and a threat of increased COVID-19 infections on campuses that lack social distancing have caused some universities to announce permanent closure. That list includes — but is not limited to — MacMurray College and Urbana University. Similarly, Notre Dame de Namur University has decided not to enroll new undergraduate students for summer 2020 or fall 2020 and is working to obtain the necessary financial support to remain open. It is likely to join others in permanently closing its doors in the near future.

Other colleges and universities have started eliminating their athletic teams to reduce their budget costs. On May 14, 2020, the University of Akron announced it was eliminating men’s cross-country, men’s golf and women’s tennis.

This announcement was followed five days later with Central Michigan University announcing they would eliminate men’s indoor and outdoor track. Three days after Central Michigan’s announcement, East Carolina University announced the elimination of men’s and women’s swimming and diving and tennis.

These educational institutions are not small universities or colleges, but are high-profile Division I athletic departments. They are not the first higher educational organizations to close or make changes to athletics — and most certainly will not be the last — as administrators attempt to manage budget shortfalls, reduced enrollment, and high overhead cost.

Maintaining Title IX Compliance in Today’s Educational Environment

As an athletic administrator, how do you analyze the current crisis, project the future and still maintain compliant with Title IX? The answer: eliminate the men’s sports that do not generate revenue.

This decision has happened before. In the late 1990s, several universities eliminated wrestling, swimming, gymnastics and track programs. The United States Court of Appeals decision in Cohen v. Brown (1996) forced athletic administrators to be fearful of eliminating the wrong sport. Specifically, administrators feared losing access to student loan money over violating Title IX regulations.

The resulting eliminations focused on the elimination of men’s non-revenue sports to balance gender equity and not financial stability. Originally, Title IX of the Education Amendments of 1972 was ruled to include athletics when the Office of Civil Rights (OCR) published their regulations in 1979. Although Grove City College v. Bell (1984) gave colleges some relief by holding in a 6-3 decision to apply Title IX requirements only to specific programs or activities that received federally funded grants, the Civil Rights Restoration Act of 1987 reversed the Supreme Court’s decision and mandated that college athletic departments must comply with the regulations.

Now that we are in a financial crunch and the looming threat is the permanent closures of colleges and universities. As a result, administrators are looking down a gun barrel.

Athletic Administrators Must Make Necessary Budget Cuts While Still Maintaining Division I Status

Each Division and even athletic conferences have their own set of requirements. For instance, to be a Division I institution, it must:

• Sponsor seven sports for men and seven for women
• Sponsor six sports for men and eight for women (as an alternative to offering seven sports for each gender)
• Provide a minimum of two team sports for each gender
• Ensure compliance with financial aid and attendance requirements

But as an athletic administrator, how do you manage financial hardship while maintaining Division I status? If the institution is at the minimum requirements to maintain Division I status, then how can the necessary budget cuts be made?

It is an impossible task, and something will be hurt in this scenario. Critics will say, “Eliminate the football or hockey team.” However, university administrators know that decision may cause an even greater financial and enrollment decline.

The potential of bowl, NCAA tournament or TV money could be the saving grace for these dying institutions. Does the tennis, golf or cross-country team have that potential to bring in revenue? No.

Athletic administrators have been forced to plan the odds to ensure a chance of survival, even at the potential risk of Title IX violations. Their hope is that the current crisis will allow a philosophy of the good of the many to outweigh the good of the few.

Technically, these institutions may violate the Title IX requirements by letter of the law. But athletic administrators are attempting to stay true to the intent of the law, which was to provide increasing opportunities to an underrepresented gender.

By cutting sports and teams, athletic administrators are keeping their institutions alive. By staying alive, those institutions can at least provide some opportunities versus losing all of their opportunities.

About the Author

Christopher Buckler is an instructor for the undergraduate and graduate sports management programs in the School of Health Sciences at APU. He is also a Certified Strength and Conditioning Specialist (CSCS) and a licensed attorney working in the coaching and athletic administration field for the past 20 years. Christopher holds a B.S. in physical education and a B.S. in marketing from Miami University, a J.D. in law from Marquette University, and an M.A. in human performance from The University of Alabama.