Within the Big Ten conference, including at the University of Michigan, women do not have an equal opportunity to participate in and benefit from college sports this fall when compared to men. Because of this, there is a compelling case to be made that the Big Ten is operating in violation of Title IX, which prohibits gender discrimination. Women and gender non-binary students who play fall women’s sports could potentially have strong Title IX claims against universities within the Big Ten.
In making the unanimous decision to reopen football this fall, and football alone, the Big Ten doesn’t seem to be following the general wording of the Title IX of the Education Amendments Act of 1972, 20 U.S.C.§§1681 which states:
“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
Right now, some male athletes can practice and play, but no female athletes have been given a comparable opportunity this fall. Players for the University of Iowa Hawkeyes football team rejoice in knowing that they will return to play Oct. 24, while teams like the Minnesota Golden Gophers women’s volleyball team fervently hope for the chance to do the same. There is uncertainty regarding the reinstatement and timeline of women’s fall sports following the NCAA announcement of spring championship dates. This has created an assumption that these sports will be played in spring — but with no clear plan from the Big Ten.
Why wasn’t Title IX or equal opportunity considered by the Big Ten Return to Competition Task Force? The very same 14 university presidents in the Big Ten who voted unanimously to open conference football signed the National College Athletic Association Presidential Pledge: The Pledge and Commitment to Promoting Diversity and Gender Equity in Intercollegiate Athletics. This is remarkable because only 81.2% of Division I university presidents signed on to a pledge which largely promises to uphold existing civil rights laws. Setting law aside, the Big Ten presidents should be held accountable for failing to uphold this agreement.
An argument could be made that women aren’t being excluded from equal participation because they might get a chance to compete in the spring semester. This logic does not hold up well to Title IX statute text or case precedent. The “scheduling of games and practice time” is listed in the 34 C.F.R. § 106.41(c) as a way of measuring equal opportunity.
The NCAA’s own handbook on Title IX compliance cites an example eerily similar to the current situation, which states that “institutions need to look at all sports.” The handbook continues with, “… if football is the only program brought back early, the fact that there is no like program will not excuse the school’s decision to bring back members of one sex and not the other.” Several past cases such as Parker v. Franklin County and McCormick v. School Dist. of Mamaroneck have established that scheduling disparities between male and female athletic competitions do in fact qualify as a denial of equal opportunity.
One of the ways Title IX compliance is measured is by whether a disparity exists between men and women in varsity sports participation and making sure that this ratio is approximately proportional to the gender ratio of the student body at large; this was clarified in the case Cohen v. Brown. For example, the University of Michigan has a precise ratio of 50% male to 50% female undergraduate students, so athletic opportunities should match.
Adding to the disparity, the men participating in football this fall receive more benefits than in a regular season. The same Title IX statute, as listed above, specifically lists the provision of medical services as a way by which to measure equal opportunity in intercollegiate athletics. Football players this fall not only will be able to receive daily antigen tests to help detect infection of COVID-19, but extensive cardiac support care in case of a positive test — including giving positive players easy access to cardiac MRI machines, even when none is available in the local area. The Big Ten press release regarding medical protocols amid football’s return did state that “eventually all Big Ten sports will require testing protocols before they can resume competition,” but it is unclear when those practices will be instituted across the board for athletes.
To fully comply with Title IX, one would expect an equivalent opportunity for female athletes. This has not happened. With statistics like these, every single woman or gender-non-binary varsity athlete could have a potential Title IX claim.
A counter argument might be that football is a special case and thus should be looked at differently under Title IX. Football is a large source of revenue for universities, and so perhaps it is justified to treat this sport differently when considering COVID-19 reopenings given budget woes. However, this argument has implications beyond Title IX. The NCAA and member universities have vigorously defended lawsuits from male football and basketball players requesting adequate compensation for the use of their labor and likenesses by citing participation in an amateur sport. If the Big Ten defends Title IX claims with a “football is special” defense, this could undermine the avoidance of paying football players in other ways.
The litigation regarding Title IX violations and COVID-19 has already begun, foreshadowing more to come. The seminal case Cohen v. Brown was recently reopened due to new allegations of Brown’s violation of the decades-old settlement due to COVID-19 budget cuts. On Sept. 25, 2020, a class action complaint was filed against the University of Iowa for providing inequitable access to athletic opportunities for women, a shortcoming further aggravated by eliminating the women’s swimming and diving program.
We as students, alumni, community members and sports fans deserve answers. In responding to a crisis, which values are lost in rushed decision-making and why? Why did university presidents not act in accordance with their pledge to provide equal opportunities for women when they voted to reopen football? At the University of Michigan, will women and gender non-binary varsity athletes in fall sports file a class-action suit like their colleagues at the University of Iowa? Is the benefit of one partial season of football with a high risk of injury to players, including possible death, worth the consequences?
Laura Miller is a first-year student at the University of Michigan Law School and can be reached at firstname.lastname@example.org.
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