Is the NCAA Undermining Title IX?

Two weeks ago, VICE Sports published an analysis that found a number of major athletic departments might not be complying with Title IX. Based on data submitted to the Department of Education, 30 schools in the Power Five conferences of the Football Bowl Subdivision appear to have underfunded women's athletic scholarships.

According to some schools, the National Collegiate Athletic Association is to blame, not them.

The NCAA limits the number of scholarships schools can award in each sport. For example, men's basketball teams in Division I can only award 13 scholarships per year, while women's teams can award 15. Under Title IX, schools are supposed to spend athletic aid dollars in proportion to each gender's participation; an unexplained disparity of more than one percentage point indicates a possible violation of the law. If a school sees that it's underfunding women's athletic aid, however, it can't just freely hand out more scholarships to female athletes—that would exceed the NCAA's per-sport scholarship caps, which would result in association sanctions, including the possible loss of more scholarships in the future.

In other words: the NCAA is potentially limiting opportunities for female athletes, and making it harder for schools to follow federal law.

Take Notre Dame, which says it is "fully funded" in women's sports, meaning that it is giving out all of the scholarships it possibly can under the association's caps. Nevertheless, the school has a three percent equity gap—that is, there is a three-point difference between the rate of women's participation in sports and the rate they are awarded athletic scholarship dollars.

If Notre Dame didn't have to follow NCAA rules, the school says, it would offer more scholarships to female athletes.

"With respect to financial aid, all 13 of our women's intercollegiate athletic programs receive the NCAA maximum number of scholarship dollars," Notre Dame senior associate athletic director for business Jill Bodensteiner wrote to VICE Sports in an email. In a follow-up email, she wrote, "The NCAA limits do have an impact. And yes, we would try to be 'fully funded' in all sports if they were increased"—as long as increases didn't further give an advantage to Notre Dame's sponsored men's sports.

It's not just Notre Dame. In 2013-14, Florida State had an 8.5-point equity gap. It would have cost the Seminoles roughly $681,000 more in women's athletic scholarships to make things even—an amount the school's athletic department almost certainly could have afforded.

According to USA Today, Florida State brings in over $120 million in annual athletic revenue. The school has spent luxuriously on revenue sports in recent years, adding both a world-class football players' lounge and the kind of indoor practice facility that even the closest NFL team, the Jacksonville Jaguars, lacks. Meanwhile, many of the school's athletes are on teams with very few available scholarships. FSU has 21 beach volleyball players, but thanks to NCAA limits, it can only split three scholarships among those athletes. It has 189 track athletes, but they must split 18 scholarships.

Florida State did not respond to a VICE Sports request for comment. However, the school wrote the following in its 2013-14 report to the Department of Education under the Equity in Athletics Disclosure Act:

Florida State University (FSU) remains committed to the importance of gender equity by providing equitable opportunities to both male and female student athletes for intercollegiate athletic competition. FSU fully funds the maximum number of athletic scholarships allowable for both male and female student athletes without any limitations of in-state or out-of-state ratios.

Like Notre Dame, FSU claims it is fully funding its female athletes under NCAA rules. And as is the case with the Fighting Irish, those rules appear to be preventing the Seminoles from complying with Title IX.

Given that the NCAA claims a core commitment to "the supporting role that intercollegiate athletics plays in the higher education mission" as well as "an inclusive culture that fosters equitable participation for student-athletes," why does the association make it harder for its member schools to hand out financial aid to athletes? Why does it enforce scholarship limits in the first place?

The NCAA did not respond to a VICE Sports request for comment. However, history and previous association statements provide some answers.

In the mid-1970s, the NCAA set per-team scholarship limits on football (105) and men's basketball (18). NCAA members have claimed that the limits were necessary to maintain competitive balance; without them, the richest schools would stockpile all of the best athletes. But according to the NCAA, the caps were actually imposed to save money—before the rule, some Southeastern Conference schools had been awarding as many as 125 football scholarships a year.

Since that time, the NCAA has revised its football limits downward—to the current scholarship maximum of 85—while extending scholarship caps to all sports. This includes women's sports, which have been constrained by association rules since 1982. For example, Division I rowing can only offer 20 scholarships despite an average team size of 67. And Division I beach volleyball teams can only offer three scholarships despite needing far more athletes to make up a full and competitive roster, with an average of 16 athletes per team.

Again, the NCAA has argued that scholarship caps are necessary to preserve competitive balance. This isn't necessarily true, or at least not for football: a report by economist Dan Rascher filed in the _Rock _v. NCAA__ lawsuit, an antitrust case that challenging the association's amateurism rules, found that there was no significant change in the sport's competitive balance after the implementation of limits. And there's little evidence it holds true for women's sports, either: only six different women's basketball teams have won a national championship since 2000.

"An impartial observer would likely conclude that even with the emphasis given and number of attempts to legislate it across a broad spectrum of institutions, 'competitive equity' has failed," Big 12 commissioner Bob Bowlsby has said, according to Rascher's report.

What is true is that capping women's scholarships means schools like Notre Dame can end up handcuffed from giving out as much athletic aid as Title IX requires, and that individual female athletes end up receiving less money than they otherwise would. Oddly enough, the NCAA and many of the Power Five conferences are currently arguing the opposite in Jenkins v. NCAA, another antitrust case, claiming in federal court that amateurism rules, which include scholarship limits, actually increase opportunities for athletes.

The Atlantic Coast Conference (home to Notre Dame), Big Ten Conference, Big 12 Conference, and Pac-12 Conference, all co-defendants in the Jenkins case, have filed a brief that includes the following:

The challenged rules serve the procompetitive goal of widening opportunities for student-athletes to attend college through athletic scholarships in all sports in a manner compliant with Title IX and related regulatory requirements, thereby expanding output in the college education market.

In plain English, the conferences are claiming that their rules, at least in part, help ensure schools are complying with Title IX.

Thing is, this argument is contradicted not only by common sense—in no known mathematical universe do fewer scholarships for female athletes equal more scholarships for female athletes—but also by the NCAA's own previous analysis.

In 1995, the association's Committee on Financial Aid and Amateurism found—duh—that increasing scholarship limits would increase opportunities for athletes. Yet according to committee chair Charles S. Harris, his group declined to recommend an increase for a single, simple reason: too expensive.

"In initially applying the principles and data to existing limits, the committee found that significant across-the-board increases (in scholarships) in most Divisions [sic] I and II sports would result," Harris wrote in a summary of the committee's findings, which is included in Rascher's Rock _v. NCAA_ report. "Because of continued concerns regarding cost containment, the committee concluded that it was not prepared to recommend such increases.

"The committee believed that these increases would effectively repeal the gains the Association has made in controlling costs through previous reductions in NCAA limits."

When addressing the larger issue of allowing college athletes to be paid, the NCAA and the major conferences long have asserted that doing so is both unworkable and unaffordable under Title IX: pay the starting quarterback, and federal law means you'll have to pay your women's rowers, too; pretty soon after that, the story goes, all of college sports as we know them will collapse under the weight of massive, out-of-control athlete salaries. Many legal scholars disagree with this assessment, pointing out that schools already put far more money into men's sports and pay men's coaches more. The federal judge in O'Bannon v. NCAA discredited this argument, too.

Still, defenders of the college-sports status quo deploy this reasoning regularly, effectively claiming that limiting what athletes can receive for playing sports—and how many of them can receive anything—is doing those same athletes a favor, particularly female athletes. Only this is hogwash. As Notre Dame and Florida State's examples show, NCAA rules can make it harder to comply with Title IX, not easier.

In a bigger picture sense, perhaps this shouldn't be surprising. The Office for Civil Rights enforces Title IX, not the NCAA. The NCAA does not have Title IX requirements written into its bylaws and does not make Title IX compliance a requirement for membership, nor has it ever punished member schools who fall out of compliance. Similarly, none of the ACC, Big Ten, Big 12, or Pac-12 have Title IX provisions. (The ACC told VICE Sports that it does not comment on ongoing litigation. The Big 12 declined to comment.)

In fact, the NCAA actually sued the federal government in 1976 in a failed effort to challenge Title IX. Today, that isn't an option: not legally, and certainly not from a public relations standpoint. Still, the association's history, governance, and current scholarship caps suggest that it doesn't seem to care a whole lot about Title IX—not unless it can hide behind the law in order to keep money away from athletes, male and female.

"Title IX is thrown up at times as a smokescreen to prevent candid ways of dealing with some of the longstanding problems that we've had in college sports," said Drexel sport management professor Ellen Staurowsky, a NCAA critic and college sports historian. "Consistent with the overall industry tendency, I think the rules get manipulated in service to whatever issue of the day is of greatest threat to the profitability of the entities involved."

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