February 6, 2023

Volume XIII, Number 37

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February 03, 2023

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50 Years of Title IX: Celebration, Introspection, and a Call to Action

Fifty years ago today, on June 23, 1972, the Education Amendments Act was signed into law. Nestled into that comprehensive legislation was an innocuous, 37-word clause which revolutionized gender equity in education: Title IX.

“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.”

The text of Title IX does not contain the words sport or athletics, team or funding, assault or misconduct. Nonetheless, 50 years after its passage, Title IX has galvanized national discussions around athletics participation, sex- and gender-based violence, and access to educational opportunities. While gender-neutral on its face, Title IX has nonetheless been described as “the most important law passed for women and girls in Congress since women obtained the right to vote in 1920.”

Most Americans familiar with Title IX say it has had a positive impact on gender equality in the United States (63%). However, according to a February Pew Research Center survey of U.S. adults, 37% of respondents (46% of women and 29% of men surveyed) believe Title IX has not gone far enough to increase opportunities for women and girls to participate in sports. The 50th anniversary of Title IX presents an opportunity for America to celebrate the myriad accomplishments of women and girls empowered by Title IX, but also for education institutions, athletics associations, legislators, and ­­­other stakeholders to take tangible steps to continue to advance gender equity in all aspects of education.

Barrier-Breaking Legislation

Congresswoman Patsy Takemoto Mink, a multi-term member of Congress from Hawaii, played a pivotal role in developing, drafting, and defending Title IX (alongside Oregon Congresswoman Edith Green and Indiana Senator Birch Bayh, among other early champions). The first Asian American woman to serve in Congress and the first woman of color to be elected to the House of Representatives, Representative Mink was emblematic of Title IX’s ideals of equity and inclusion. In fact, the official name of Title IX was changed in her honor to the Patsy T. Mink Equal Opportunity in Education Act after her death in 2002.

Title IX applies to schools, local and state education agencies, and other education institutions that receive Federal financial assistance. These recipients include approximately 17,600 local school districts and over 5,000 postsecondary institutions.

In its 37-word simplicity, Title IX’s reach is vast. It touches all aspects of education, including: recruitment, admissions, and counseling; financial assistance; athletics; sex-based harassment, which encompasses sexual assault and other forms of sexual violence; treatment of pregnant and parenting students; treatment of LGBTQIA+ students; discipline; single-sex education; and employment. Enforced nationwide by the U.S. Department of Education’s Office for Civil Rights, Title IX has inarguably changed the landscape of American education.

Let Them Play: Access to Sports

The Women’s Sports Foundation recently issued a 50th Anniversary Title IX report showing that in 2018-19 (the most recent reporting year), girls had 3.4 million opportunities to participate in high school sports. According to the National Archives, one in 27 girls played high school sports in 1972; today, two in five do.

While the addition of over 3 million annual high school sports opportunities over the past 50 years is impressive, it is critical to understand the intersectional effects of race, gender, and socioeconomic status on access and exposure to sports: reports show that 42% of America’s public high schools are at least 90% white or at least 90% minority, and that there are far fewer opportunities to play high school sports at those majority-minority schools. Further, reports state that only 14 percent of college athletes are women of color. Those statistics underscore the importance of intentional inclusivity efforts.

Title IX has catalyzed the expansion of athletics participation opportunities for women and girls at the collegiate level as well. NCAA data reflects that in the 50 years since Title IX’s enactment, female participation in college sports has increased by nearly 200% (from fewer than 30,000 female student-athletes in 1972 to more than 215,000 today), and the number of women’s collegiate teams rose by 125% during that same time period.

The benefits of athletics participation extend beyond the final whistle. Pew Research reports that 79% of Americans who participated in high school or college sports said their sports experience was a positive factor in their self-esteem and 44% indicated it had a positive effect on their future job or career prospects. As we previously reported, participation in sports is tied to success both on and off the field for women athletes in particular: a notable Ernst & Young and espnW study found that an astounding 94% of female corporate-suite executives played sports, and 52% of them played sports at the college level. Athletics participation instills resiliency, teamwork, dedication, confidence, time management strategies, and countless other intangible benefits in athletes across the country, and research demonstrates that women who played sports in high school generally earn higher salaries when they enter the workforce than their non-athlete counterparts.

Facilities and Fueling Stations and Flights, Oh My: Equitable Treatment Considerations for Today’s Student-Athlete

It is not enough to celebrate advancing the ball through the mere addition of women’s participation opportunities — schools should consciously and intentionally elevate the student-athlete experience to provide equitable treatment in the aggregate to members of men’s and women’s teams.

Equitable treatment involves meeting teams where they are and addressing each program’s unique needs to set student-athletes up for success. It involves a holistic assessment of the lived student-athlete experience across all sports at a given school. Many schools are investing heavily into resources and facilities for the benefit of women’s teams and female student-athletes. On this 50th anniversary of Title IX and in light of student-athletes calling attention to disparities, the nation is paying closer attention than ever before to the way athletics departments outfit, feed, transport, market, and coach men and women at any given school. In today’s litigious environment, equitable treatment lawsuits can be costly for schools and ultimately can divert resources away from student-athletes to high-priced Plaintiffs’ attorneys.

The best defense to a claim of inequitable treatment on the basis of sex is a good offense. Athletics departments can advance equitable treatment by regularly conducting holistic Title IX gender equity reviews of all aspects of the student-athlete experience and implementing feedback and suggestions, where appropriate, from student-athletes, coaches, athletics administrators, and external partners. 

Entrepreneurs and Influencers: Women Athletes Nimbly Navigate Market Forces

The summer of 2021 marked the beginning of a new era in collegiate sports: student-athletes were permitted to monetize their own names, images, and likenesses (NIL) to enter into sponsorship and endorsement deals without forfeiting their ability to compete in NCAA sports. While male and female student-athletes alike celebrated the opportunity to market their personal brands, market forces often lead to more monetization opportunities and higher payouts for male student-athletes in certain sports. However, many women across the country have capitalized on their athletics prowess, social media engagement, and personal brands to enter into lucrative NIL deals:

  • Louisiana State University’s gymnastics powerhouse Olivia Dunne has amassed a whopping 5.5 million followers on TikTok and 1.9 million followers on Instagram, making her one of the most-followed student-athletes in history. Dunne has signed numerous endorsement deals, and her social media profiles were prominently displayed in Times Square to celebrate the NCAA NIL rule change.

  • South Carolina women’s basketball national champion Aliyah Boston was offered a partnership with Orangetheory Fitness, among other opportunities, after being named the championship game’s Most Outstanding Player.

  • University of Connecticut women’s basketball player Paige Bueckers has signed multiple endorsement deals, including with Gatorade, and may earn upwards of $1 million annually (which is higher than the base salary for a top-four pick in the WNBA). Bueckers has 1 million Instagram followers, which the Wall Street Journal notes is “more than the twenty 2021 Men’s Final Four starters combined.”

  • Olympic all-around champion gymnast Sunisa Lee capitalized on her success by partnering with national and international household brands. Lee’s 1.7 million Instagram followers skyrocketed after her stellar Team Final performance during the Tokyo Games, and she has quickly become a crowd favorite at Auburn.

Colleges and universities cannot control external market forces or fan behavior, nor can they dictate the value that corporate sponsors place on partnerships with individual student-athletes. Instead, education institutions should focus on intentionally and equitably promoting athletes on men’s and women’s teams to enable them to monetize their personal NIL. Equitable efforts by the school may well insulate it from claims related to inequitable market forces.

The Business Case for Women’s Sports

Title IX has ushered in an era of unprecedented athletics participation for women, and significant sources of funding and revenue have followed those women onto the field, the mat, and the court. According to Shot:Clock Media, the 2022 Women’s College World Series averaged more than 1 million viewers per game, peaking at 2.1 million in game two of the finals. The 2022 Women’s March Madness tournament boasted record viewership as well, with 4.9 million average viewers and 5.91 million captivated women’s sports fans at the tournament’s pinnacle.

Corporations, organizations, education institutions, and student-athletes are paying attention to these market forces. WNBA Commissioner Englebert noted that “If these two facts are right: 84% of sports fans are interested in women’s sports, and women control 85% of US spending power, we should be able to really transform the way women’s sports are valued.” That quote inspired organizations like GOALS, Caroline Fitzgerald’s initiative to drive revenue and investment to women’s sports. “I believe the rise of women’s sports is the most exciting trend in sports today, and that brands, networks, and individuals would be wise to invest in women athletes sooner rather than later,” Fitzgerald explained.

Collegiate sports marketing giant Learfield backs that play: a recent publication shows that female college sports fans account for 42% of known fans. Social media accounts for women’s sports typically show similar or higher engagement rates than men’s sports or general athletic accounts, and nearly 80% of all sports apparel dollars are directly influenced by women. Female fans purchase the majority of tickets for collegiate gymnastics, field hockey, and swimming events, in addition to more than one-third of football and men’s basketball tickets. Fans of women’s sports who don’t purchase tickets to watch events in-person have more options than ever before to view streamed or live-coverage competitions: Jenny Nguyen recently opened The Sports Bra, a sports bar and memorabilia hall featuring exclusively women’s collegiate and professional sports.

Targeted marketing to women sports fans has calculable, monetizable benefits for brands and schools, and increasing the number of fans of women’s sports (regardless of the gender of those fans) has substantial revenue implications.

Val Ackerman, Commissioner of the Big East Conference and founding president of the WNBA, sums up tomorrow’s possibilities: “With the gains and focus of the past few years as tailwinds, women’s sports properties are well positioned to become sought-after and enduring entertainment options, the kind that busy fans (women and girls among them) will make time for and pay real money to see. As Title IX’s next 50 years gets underway, I’m sure its authors would be cheering from the stands.”

Not Just Locker Room Talk: Sexual Harassment and Misconduct

In addition to Title IX’s implications for athletics, its impact on addressing sexual misconduct in education is immensely powerful. The statistics reflecting the incidence of sexual assault and other forms of unwanted sexual contact are staggering — studies show that approximately one in four undergraduate women, and more than one in five college students who identify as gay, transgender, or nonbinary, report experiencing nonconsensual sexual contact or activity before they graduate. There has been an increased focus since 2011 from the White House and campus administrations on preventing, investigating, and adjudicating alleged sexual misconduct and gender-based violence, although interpretation and enforcement of Title IX in this area appear subject to significant political and legislative influence.

In 2020, the U.S. Department of Education released new Title IX sexual harassment regulations which defined education institutions’ obligations for responding to and addressing alleged sexual harassment. As a result, schools drafted new Title IX policies and procedures, hired additional staff members into Title IX offices, and educated members of their campus communities about the impact of the new regulations — all during a global pandemic.

Today, the Biden administration’s Department of Education released its highly-anticipated, proposed changes to the 2020 Title IX regulations. The public and interested parties now have an opportunity to comment on the proposed changes, making it unlikely that the final rule will go into effect before the 2022-2023 academic year. Nonetheless, education administrators should immediately consult legal counsel to begin preparing for the forthcoming changes amidst significant public, partisan discourse related to due process, trauma-informed practices, protections for LGBTQIA+ students, and the role of education institutions as quasi-judicial ecosystems.

The Final Buzzer

Today’s 50th anniversary of Title IX, the landmark civil rights law, is certainly a cause for celebration: all of us have benefitted in some way from Title IX’s prohibition on sex discrimination in education programs and activities. Women’s athletics programs have won countless national titles, sent hundreds of talented athletes to compete on the international stage, and demonstrated the tangible, monetizable market power that fans of women’s sports hold. Revised Title IX regulations will set the stage for a continuing national debate on the prevention, investigation, and adjudication of gender- and power-based violence in education settings. The anniversary also presents an opportunity for reflection, however, and inspires a renewed call to action to promote a more equitable future.

Copyright ©2023 Nelson Mullins Riley & Scarborough LLPNational Law Review, Volume XII, Number 174
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About this Author

Daniel Cohen Education Lawyer Nelson Mullins
Partner

Dan's practice encompasses decades of experience working with educational institutions and their athletics departments.

Dan has counseled universities, colleges, medical institutions, and other educational institutions regarding Title IX athletics and sexual misconduct matters, athletics strategic planning, NCAA compliance, litigation, labor and employment, school and university law, and sports law.

With more than 20 years’ experience in higher education athletics matters, Dan's Title IX practice is extensive. He performs athletics audits and compliance reviews, develops...

404.322.6721
Alexis “Lexi” Trumble  Education Lawyer Nelson Mullins
Associate

Alexis “Lexi” Trumble is a member of the school & college law practice and focuses on a variety of aspects of litigation and education law, with an emphasis on the myriad areas of federal Title IX compliance. She brings to her practice four years as a collegiate student-athlete and leverages that experience to advise educational institutions and their athletics departments. Ms. Trumble draws from these real-world experiences to help counsel colleges and universities across the country on legal and compliance matters such as Title IX athletics and sexual misconduct,...

404.322.6527
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