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CREATING UNEQUAL EQUALITY

 

Notes TITLE IX: CREATING UNEQUAL EQUALITY

THROUGH APPLICATION OF THE PROPORTIONALITY STANDARD IN

COLLEGIATE ATHLETICS

I. INTRODUCTION

Aaron Roberts is a three-sport high school senior in Smalltown, Indiana. i As he looks for a university to attend next year, he wants to find a school that not only offers his favorite sport, hockey, but one that may also be able to give him the scholarship to play. Unfortunately, many of the top schools in the area, such as Indiana University and Purdue, do not offer a men’s hockey program.

Finally, Aaron finds a small Division III school that offers a hockey team, and he is excited to spend the next four years of his college career playing hockey for Petite University (“PU”). PU has been competitive in its conference for many years, winning the National Collegiate Athletic Association (“NCAA”) Division III tournament on several occasions. When Aaron gets to campus, he joins the team and has a great first season.

The team wins its conference and makes an appearance in the NCAA tournament. However, after Aaron’s freshman season, the school decides to cut the men’s hockey program at PU to comply with Title IX. He must spend the next three years playing club hockey instead of enjoying the varsity experience he anticipated.^

Aaron’s story is not uncommon for men’s low-revenue athletic teams throughout the country. In the last twenty years, more than eight hundred men’s athletic teams have been eliminated from collegiate programs.^ With universities receiving fewer private donations and operating budgets being downsized, athletic programs are under more

1 The author created a fictional story to illustrate the adverse effects of Title IX’s current application to men’s athletic teams, which is the issue of this Note. 2 If Aaron decides to transfer schools once the program is cut, he will most likely have to sit out a year from participating, which can cause problems for the academic transfer of credits and eligibility. See NCAA, TRANSFER 101:

BASIC INFORMATION YOU NEED TO KNOW ABOUT TRANSFERRING TO AN NCAA COLLEGE (2011), available at http://www.ncaapublications.com/productdownloads/TGONLINE2011.pdf (stating that eligibility after transfer may be postponed unless an exception is allowed by the new school, and exceptions are laid out based on the division of the old and new school). 3 Ryan T. Smith, Note, “Bull’s Eye”: How Public Universities in West Virginia Can Creatively Comply with Title IX Without the Targeted Elimination of Men’s Sports Teams, 110 W. V A . L . REV. 1373,1389 (2008).

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558 VALPARAISO UNIVERSITY LAW REVIEW [Vol.46

pressure than ever to cut costs.* Men’s athletic teams often take the brunt of these cuts to allow schools to comply with the Title IX proportionality requirement, which requires schools to structure athletic programs based on the proportion of students who attend the university.5 Although Title IX has made large strides in creating opportunities for women in athletics, in the forty years since its inception, the proportionality requirement of compliance has now started creating excessive adverse effects for men’s teams.^ Due to its dramatic effect on all aspects of education, especially athletics, scholars have analyzed Title IX’s application and interpretation to determine the validity and effectiveness of the statute since its enactment in 1972.̂