On Tuesday, we published our initial article about the UW club baseball team’s 14-page proposal to bring back intercollegiate baseball at Wisconsin. Included were details about the finances that would go into the program, as well as proposed endowments that were turned down. In this piece, we will be focusing on the implications of Title IX and how they impact a decision moving forward. We spoke with multiple lawyers to explain the history of Title IX’s recent issues and resolutions and to review our findings.

When then University of Wisconsin-Madison athletic director Pat Richter dropped baseball in 1991, it was in response to an Office of Civil Rights (OCR) investigation into Title IX compliance started in 1989. But, the university was in debt and cutting baseball, along with men’s and women’s gymnastics and men’s and women’s fencing, would allow UW to come back out of the red.

“Title IX” is the U.S. Education Amendment from 1972, which includes a mandate that women have equal opportunities in athletics as men. The law is undoubtedly the most complex issue involved in the baseball proposal, as the guidelines are not the most clear-cut.

Title IX has continued to be one of the biggest arguments through the years of why the baseball program will not be coming back any time soon. UW-Madison currently has 23 Division I programs, with 12 women’s teams and 11 men’s teams.

The following is what is considered to be compliant within Title IX, according to the NCAA:

“An institution must meet all of the following requirements in order to be in compliance with Title IX:

  1. For participation requirements, institutions officials must meet one of the following three tests. An institution may:
    1. Provide participation opportunities for women and men that are substantially proportionate to their respective rates of enrollment of full-time undergraduate students;
    2. Demonstrate a history and continuing practice of program expansion for the underrepresented sex;
    3. Fully and effectively accommodate the interests and abilities of the underrepresented sex; and,
  2. Female and male student-athletes must receive athletics scholarship dollars proportional to their participation; and,
  3. Equal treatment of female and male student-athletes in the eleven provisions as mentioned above.”

Yes, Title IX is a major obstacle to UW’s chances of bringing back baseball, but it does not mean the athletic department should give up right then and there.

As of right now, UW is considered compliant, which Block detailed in his research.

“In looking at last year’s numbers (2014-2015),” writes Block in the proposal. “It appears that the University of Wisconsin-Madison had 393 women participants compared to to 374 male participants. Based on that, UW appears to be plenty compliant. Additionally, men’s sports take 55% of athletic aid (largely due to football scholarships) and the women take 45%. Thus, if ratios of participants are kept intact, then there is leeway in other areas. The flexibility that Title IX allows for institutions to remain compliant suggests that there is no hard and fast rule that is keeping UW from adding baseball due to the need for an equal amount of scholarships. If there were, then there would be equal amounts right now.”

Sconnie Sports Talk reached out to Professor Robert M. Jarvis, Nova Southeastern University law professor and co-author of Baseball and the Law, for a lawyer’s opinion on the issue. He understands the concerns about Title IX and costs that come with bringing the program back, but spelled out a plan that may work.

“Adding baseball would push UW further out of Title IX compliance,” Professor Jarvis told me. “To add baseball and remain relatively Title IX compliant would require adding another women’s sport. While it is impossible to say what new women’s sport would be added, it is likely (based on what other Big Ten institutions have done) that it would be a sport like field hockey, lacrosse, or rugby.”

In recent years, Louisiana State University (LSU), Butler University, Southeastern Louisiana University, and other schools reached resolutions with the OCR over Title IX concerns. Additionally, OCR is not the only source of a challenge for a university. For example, any coach of a female team that is paid less than coaches for male teams in comparable positions could sue the University for Title IX violations or for that matter, Title VII violations, most likely in U.S. District Court. These cases are uncommon, but any move of unfair compliance could trigger an investigation or lawsuit.

Still, the OCR is not exactly attacking too many programs, as written in Block’s proposal: “Although most institutions are not in compliance with Title IX, no institution has lost any federal funds as a result of non-compliance with Title IX (Office for Civil Rights states that it does not have sufficient staff/budget to fully enforce Title IX).”

To meet compliance, UW would have to likely add a women’s sport or two. Women’s field hockey and lacrosse would make the most sense, but a program like sand volleyball could happen. Furthermore, eliminating a men’s program is not out of the realm of possibilities.

Essentially, based on the finances we discussed Tuesday and the athletic department’s worries about baseball’s costs, a group of donors would have to pay for both baseball and another female program or two.

The $50 million endowment UW athletic director Barry Alvarez refused actually covered this exact predicament. As stated in the member of the anonymous donor group’s correspondence, “This single purpose money could be raised for the purpose of restarting the men’s intercollegiate baseball program, and two women’s sports (probably women’s La Crosse [lacrosse] and women’s rugby [or] women’s collegiate bowling) for gender equity.”

Concerns are there that Title IX compliance can be tricky and that baseball could cause a financial squeeze once again, but Title IX can be figured out and there is way more money available today than there was in 1991.

In order to get to that point, the athletic department just needs to be willing to attack the details and open the conversation, especially if donor money is there.

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