A field of nightmares: a number of male sports have been kicked off campus - cutting college sports teams for men to make room for women's sports under Title IX

MIKE SCOTT came to Providence College in Rhode Island for one reason: to play baseball. His dad had played college ball, spent some time in the minors, and was now a high school baseball coach. The younger Scott had been playing baseball since he was old enough to hold a bat. Now he had his eye on a chance at the big time: to play in the majors.

Providence, Scott thought, was the place to begin his journey. Since joining the program as an assistant coach in 1991, head coach Charlie Hickey had worked to build the eighty-year-old Friars program into a northeast powerhouse. In the 1990s, the team began to attract NCAA tournament bids and recorded just one losing season.

A standout high school hitter, Scott briefly considered the baseball program at the University of New Hampshire. But when UNH announced that it was cutting baseball in order to comply with Title IX, a federal statute that has caused gender quotas in sports (see page 13), he turned to Providence College. And although Coach Hickey couldn't offer him a scholarship, a spot on the team and a chance to play were enough. One crisp fall day in October 1998, just two weeks into the pre-season practice schedule, Coach Hickey was summoned from the practice field into Providence athletic director John Marinatto's office. A few minutes later, he returned to the practice diamond with shocking news: The 1998-99 baseball season would be the Friars' last.

The reason was Title IX. Because Providence--like virtually every college and university--receives some federal money in some form, the school was legally bound to comply with the provisions of the law.

But Scott and his teammates were confused: What women had faced discrimination at Providence? The Catholic university had a strong program of athletics for females. Of the twenty varsity programs carried by the college, half were for women. No female athlete had filed a complaint of discrimination at Providence, and no investigation had found a pattern of discrimination that somehow had escaped a complaint. What, Scott and his teammates wondered, was wrong at Providence College?

The answer could be found in a set of statistics that Marinatto had compiled that fall and submitted to the Department of Education in Washington, D.C. The Equity in Athletics Disclosure Act (EADA) requires that all colleges and universities submit a mind-boggling array of detailed information on their sports programs, broken down by sex. Schools report the number of athletic participants by sex, the assignment of head coaches by sex, operating expenses by sex, recruitment expenses by sex, coaches' salaries by sex, and on and on. In addition, the EADA demands one statistic that has nothing to do with athletics: Schools must compile and submit the number of full-time undergraduates, by sex.

Feminist women's groups like the American Association of University Women (AAUW) pushed hard for passage of EADA--with data on the gender balance of the student body included--in order to expedite the process of bringing lawsuits against schools under Title IX. By framing the issue in terms of "equity" they were able to convince Congress to impose yet another bookkeeping burden on colleges and universities and create a taxpayer-funded database with which to pursue Title IX "proportionality." Previously, finding the data needed to bring a lawsuit under Title IX necessitated a little digging; but the EADA created a readymade client shopping list for trial lawyers. One glance at a school's EADA submission shows a would-be plaintiff's attorney whether a school is vulnerable to a Tide IX lawsuit.

WHEN PROVIDENCE COLLEGE filled out its EADA form in the fall of 1998, the findings sent shockwaves through the administration. Like the majority of colleges and universities today, Providence's student body was majority female, and growing more so, but its athletic program failed to keep pace. Drawn by the security of Providence's Catholic tradition, women comprised a whopping 59 percent of all students in the fall of 1998. Female student-athletes, however, were only 48 percent of all varsity athletes. This was well above the national average of 40 percent female athletic participation, but not enough to pass the Title IX "proportionality" test. Providence had "too many" male athletes--11 percent too many, to be exact. Adding enough women's teams to meet proportionality, Providence's Gender Equity Compliance Committee calculated, would cost $3 million, a prohibitive expense for the school. Something had to give.

Seven years earlier, Providence's cross-town rival, Brown University, was sued by a group of female athletes when it attempted to de-fund two men's and two women's varsity teams in a cost-saving effort. The female athletes at Brown argued that cutting women's teams was illegal under Title IX because the university had not yet achieved proportionality--despite offering more teams for women than any other school in the country except Harvard. Brown decided to fight the lawsuit, arguing that Title IX required it to provide women equal opportunity to participate in athletics, not guarantee that they actually participate at the same rate as men. A series of adverse rulings led Brown all the way to the Supreme Court, which declined to hear the case. The result was that the rulings of the lower courts stood: Title IX was interpreted to mean that the university did, in fact, have an obligation to see that women participated in sports as enthusiastically as men. The case was a landmark in the institutionalization of q uotas under Title IX. Colleges and universities across the country began to cut men's teams to comply with what the court had decreed was the correct interpretation of the law.

Thus, Providence College did what all colleges and universities are today increasingly forced to do: consult its lawyers. Their advice was direct: The only way for Providence to insulate itself from a Title IX lawsuit or federal investigation was somehow to add enough female athletes, or subtract enough male athletes, to close the gap. So instead of imposing double-digit tuition increases to raise the funds for new women s teams, Providence chose to boost the number of its women athletes artificially by subtracting from the men's side of the sports ledger.

"They were looking for three things," says Coach Hickey. "They were looking for which sports had the number of participants to cut to bring them closer to proportionality, which sports had the scholarships they could transfer to the women's side, and which sports had the operating budget they could save money on.

Providence baseball had it all: twenty-eight bodies on the playing field, seven scholarships split among them, and $380,000 in operating expenses. Coach Hickey implored the Providence administration to save baseball by allowing the program to raise the necessary funds itself He was informed that if such a dispensation were granted, Providence baseball would also have to raise enough money to cover the creation of one or more womens teams necessary to compensate" for retaining twenty-eight male athletes. In the end, the feasible solution was to cut, not add. By eliminating baseball, men's golf, and men's tennis and capping the number of men who competed on the remaining eight men's programs, Providence achieved "proportionality." Without the addition of a single women's athletic opportunity, the percentage of female athletes rose from 47 percent to 57 percent.

Suddenly, a season that had begun so hopefully for Mike Scott and Charlie Hickey took on even more importance. Determined to go out with a bang, not a whimper, Scott and his teammates redoubled their efforts on the playing field. Second baseman Paul Costello recalled a line from Major League, a movie about a faltering group of professional baseball players: "There's only one thing left to do: Win the whole #$%&* thing!" The team adopted it as their unofficial motto.

And Providence baseball did indeed go on to win the whole thing. The 1998-99 season was the most successful in the school's history. Scott's team won forty-three games in the regular season and then four more to capture the Big East championship. With Mike Scott setting the pace, they led the nation in hits and were ranked twenty-first in the country. At the NCAA regional championship tournament in Tallahassee, the Friars took on Florida State, ranked second nationally, to conclude their season. "We played like there was literally no tomorrow," says Hickey. But in the end, it didn't matter. The Friars lost to Florida State in the regional championship, and Scott and his teammates decided to keep their uniforms.

Feminists call the struggle for proportionality under Title IX the pursuit of "gender equity." The Women's Sports Foundation (WSF) is perhaps the strongest advocate of Title IX and "gender equity" in sports, having as its mission to "increase and enhance sports and fitness opportunities for all girls and women."

Founded by tennis player Billie Jean King in 1974 in the after-glow of her victory over Bobby Riggs in the "Battle of the Sexes," the WSF is the most powerful advocacy group for female athletes in the country. Like most women's groups, it has benefited from friendly press coverage. But unlike most women's groups, the WSF has made genuine heroes its public face: women like Mia Hamm, Julie Foudy, and Michelle Akers of the championship U.S. Women's World Cup soccer team; Kym Hampton and Rebecca Lobo of the Women's National Basketball Association (WNBA); two-rime heptathlon winner Jackie Joyner-Kersee, sprinter Gail Devers, swimmer Summer Sanders, and gold-medal-winning gymnast Dominique Moceanu. This strategy of capitalizing on the popularity of female athletes has made the WSF a magnet for corporate giving. General Motors and Merrill Lynch are generous supporters. Representatives of Reebok, Mervyn's of California, and the Sporting Goods Manufacturers Association sit on its board of trustees. Their support allo ws the WSF to rake in additional contributions at a glittering gala each year in New York City and dole our more than $1 million a year in grants and scholarships to female athletes.

BUT BEHIND the appealing image of strong female athleticism that is the group's public face, the Women's Sports Foundation pursues a relentlessly political agenda: to turn the grant of opportunity for women guaranteed under Title IX into a grant of preference. Under the leadership of its street-fighting executive director, Donna Lopiano, a former All-American softball player and the former womens athletic director at the University of Texas, the WSF has done more than any other group to convince colleges and universities that compliance with Title IX means manipulating the numbers of male and female athletes.

Lopiano, who calls those who disagree with her version of equity "dinosaurs," came to the WSF in 1992 fresh from Austin, where she was instrumental in fomenting a landmark Title IX lawsuit against her own university for its failure to achieve proportionality. Lopiano was the first to admit that Texas wasn't guilty of any bias against women, only a failing to give them the preferences she believes they deserve.

The Texas case was a landmark because up to that point, court victories won by female athletes to create Title IX quotas had been limited to mandating the reinstatement of teams that had been cut. The Lopiano-inspired Texas case, in contrast, demanded that women's teams be added to fill the gender quota. Thanks to revenues brought in by Longhorn football, Texas had a bigger women s athletic budget than any other two schools in its conference combined. Still, female athletic participation--the responsibility of the recently departed Lopiano--was stuck at around 23 percent in the early 1990s. So even though the administration was already in the process of adding two women's sports, it settled before the case got to court, agreeing to reach proportionality by the 1995-96 academic year. Additional women's teams were added while non-scholarship male athletes--who, by outnumbering female non-scholarship athletes eighty-one to one, accounted for much of Texas' "Title IX gap"--were cut.

Lopiano brought the same passion for gender engineering to the Women's Sports Foundation. Her strategy, she told reporters in 1992, was to "break the bank," forcing schools to spend so much to meet the gender quota that what she regarded as the corrupt, male-dominated edifice of collegiate sports would fall entirely and be replaced by "gender equity." And if schools wouldn't spend on athletics, Lopiano made sure they spent on litigation.

Under Lopiano the WSF has worked tirelessly to cultivate future litigants and future complainants in Title IX cases. It maintains an equity hotline complete with a staff ready to assist attorney referrals, "how-to" literature, and expert assistance on everything from the rights of local girls' softball leagues to the arcana of federal regulations. There is an online database that ranks schools according to their commitment to gender equity and allows users to automatically share that ranking with local media and state and federal politicians. To keep Congress and the media aware of its efforts, the WSF sponsors National Girls and Women in Sports Day. Events are staged across the country and female athletes flood their congressmen's and senator's offices to remind them of the importance of gender equity in athletics.

But the Women's Sports Foundation, however formidable, is only one part of a coalition of liberal women's groups, trial lawyers, and "gender equity" advocates and consultants for whom Title IX is the sine qua non of existence. The American Association of University Women focuses on Title IX issues outside sports. And the National Women's Law Center (NWLC), another major player in the battle for gender equity in athletics, provides critical legal support.

ANY ATTEMPT to change Title IX enforcement, even in a small way, will meet with great resistance from these groups. "The law means everything," says Donna de Varona, former Olympic swimming champ and WSF founding member. "Sports are the most visible affirmation of what Title IX did. But if you look behind it--if you look at the success of women in business, the success of women as lawyers, as leaders, and, hopefully, as politicians--our very lifeblood depends on Title IX."

At James Madison University, as at the majority of universities, women were a rising majority of the student body in 2000 but a lagging minority of athletes, even though JMU offered its women more athletic teams than most schools--and more than it offered its men. Lady Dukes ran track and cross-country, played basketball, volleyball, tennis, soccer, lacrosse, golf, and field hockey. They even shot archery, fenced, and swam. What they didn't do was engage in these team activities at the same rate as JMU men. The result was that in the 2000-01 school year, females were 58 percent of the James Madison student body but only 41 percent of student-athletes.

James Madison was failing prong one of the three-prong test, and Al Taliaferro knew it. So on April 2, 2000, Taliaferro, the father of a senior on the JMU women's club softball team, wrote the Department of Education's Office for Civil Rights (OCR) to complain. Despite earlier assurances from university officials, Taliaferro wrote, JMU had not upgraded his daughter's softball team from partially funded club status to university-funded varsity status. Using JMU's Equity in Athletics Disclosure form documenting JMU's seventeen-point "Title IX gap" as his resource, Taliaferro contended that the refusal to upgrade his daughter's team, given the disparity of participation in women's and men's athletics at JMU, was illegal under federal law. "James Madison has blatantly discriminated in violation of Title IX on the basis of sex against female athletes for many years," he wrote. The university, he demanded, must create a varsity softball team "immediately, without further delay." Either that, Taliaferro insisted, or "the college should be forced to eliminate its baseball program until it can provide equity to both programs."

The three-prong test forced James Madison officials to take Taliaferro's remarks seriously. At minimum, his complaint would trigger a lengthy, expensive investigation by federal officials that was likely to come out badly for JMU. At maximum, the school could lose its federal funding. The officials wanted to do the right thing, but they couldn't afford to increase the size of their women's sports program. While other schools in their conference offered an average of eighteen teams, JMU featured a whopping twenty-seven. Given this already full sports offering, showing a "continuing process of program expansion" for women under prong two was out of the question.

Administrators reached out to a "gender equity" consultant for guidance on what to do. The consultant, a veteran of two decades of service in the OCR, advised them that the final test, prong three, offered little protection. As long as the university had failed to achieve proportionality, parents like Taliaferro could insist--and the federal government would agree--that JMU was out of compliance with the law. And as long as they were out of compliance with the law, they must add women's teams, whether or not they could afford to.

To resolve the complaint and shield itself from future lawsuits, James Madison saw no option other than to make wholesale cuts in its athletic program. Five men's teams and three women's teams were slated for elimination at the end of the 2000-01 academic year. Over a hundred athletes, many with years of eligibility left, would suddenly be downgraded from student-athlete to plain old student. The result was that fewer opportunities to play would be offered to everyone, but they would be offered in the right proportion: 58 percent for women and 42 percent for men--a mirror image of the student body. Opportunities for women wouldn't increase, and opportunities for men would definitely decline, by 107 team positions. But with the plan, James Madison officials felt safe from future Office for Civil Rights complaints or lawsuits.

In the end, under pressure from alumni and students, JMU decided to reach proportionality not by out-and-out killing the teams, just by taking away all their scholarship aid. Officials eliminated scholarships in eight men's teams and four women's teams, leaving four men's and nine women's teams that receive athletic aid. The legal issue was solved, but bad feelings lingered.

Stephen Reynolds, a senior on the men's gymnastic team, was one of those who lost his aid. It was his second Tide IX athletics loss in four years. Reynolds had first attended Syracuse University; where his team was cut for the same reason. He came to JMU hoping to finish his education with his new teammates. This was my team, these were the people I saw every single day, for three or four hours a day. I didn't want to see my teammates go through what we did at Syracuse," says Reynolds. "Title IX was never meant to do this."

Jessica Gavora is a Washington writer and speechwriter for Attorney General John Ashcroft. This is excerpted from her new book, Tilting the Playing Field (Encounter Books).

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