Title IX is part of the Education Amendments Act of 1972. Signed into law in June of that year, Title IX is now more than fifty years old. It has been a great boon to girls’ and women’s opportunities in athletics. My sister was on the first girls’ basketball and softball teams for our high school in Minnesota. She was an athletic stud, a three sport standout with a letter jacket filled with letters, patches and pins.
When I started teaching at Mitchell High School in 1982 there were athletic opportunities for girls in cross country, track and field, golf, tennis and basketball. Earl Hilton, who was the Athletic Director at that time, wasn’t keen about adding Volleyball and neither really was any other AD in South Dakota. It had nothing to do with a dislike of volleyball or misogyny towards females. It had everything to do with money; the cost of equipment, uniforms, coaches, busses and other travel expenses, fees for officials, arranging scorers and other personnel to administer and monitor the event etc. Eventually, Title IX prevailed and girls’ volleyball was added to the South Dakota High School Activities Association’s roster of sanctioned events.
Since then, several other opportunities for girls have been added at the high school level. For example, softball is now an official sport as is Competitive Cheer and Dance. On the other hand, hockey doesn’t count despite its popularity because it is a “club” sport rather than a SDHSSA sanctioned high school sport. Shooting sports is another example of a club sport. For a time, again back when I first started at MHS, there was a club bowling team that had girls participating as well as boys. I’m sure there are other examples as well, like the Swim Team, that I haven’t mentioned.
Title IX is interested only in school sanctioned and sponsored sports. As a result, the American Legion Baseball program doesn’t “count against” the total of boys participating in sports because it isn’t a SDHSSA sanctioned event, and neither is Spring Baseball. One of the factors preventing Spring Baseball from being added as a high school sport like Girls’ Softball has been, is that it has Title IX implications for schools as it relates to participation numbers vis-à-vis boys vs. girls.
All this brings me to the current kerfuffle in Sioux Falls over Girls’ Gymnastics. The Sioux Falls School Board voted to cut gymnastics in their budgetary process. Parents, understandably upset over the loss of opportunity for their children, went to court to get an injunction. Federal District Court Judge Charles B. Kornmann issued an injunction on October 13, 2023 to enjoin the school district from selling equipment or curtailing schedules etc. as it related to gymnastics. The District filed an appeal to the 8th Circuit US Court of Appeals that asked, among other things, that the parents of gymnasts be ordered to pay $92,000 to support the program. No decision has yet been reached by the US Court of Appeals. Most recently the Sioux Falls School Board has voted to cap boys’ participation in sports. The Sioux Falls School District has also announced the addition of Girls’ Power Weightlifting as a sanctioned school sport.
Parents are upset with the announced cap on boys’ participation in sports in Sioux Falls. They suggest that there is nothing in the wording of Title IX that mandates or even allows such capping. The School District says they are merely trying to comply with the requirements of Title IX. They are both technically correct. The difference lies in the dichotomy of written legislative text compared to the decades of practical of enforcement by the Office of Civil Rights.
Title IX is administered by the Office of Civil Rights out of the Department of Justice in Washington, D.C. There is a three prong test for judging whether a school district or a college is in compliance with the provisions of Title IX. First, is the school meeting the interests and abilities of the underserved (e.g. women)? Second, is there a history of continuing expansion in meeting obligations to the underserved? For example, the addition of opportunities for girls in softball, volleyball, competitive cheer and dance and now – in Sioux Falls – competitive power lifting are all demonstrations of continuing compliance. Third, are opportunities between males and females proportional?
Proportionality is the fly in the buttermilk and where the rubber meets the road. When I taught at Mitchell High School, I was the “head coach” of a number of activities. Over the years I was the Head Boys and Girls Tennis Coach, Debate Coach, Fall Play Director and Musical Director. Activities Directors loved me because my plays were always two to one females to males and sometimes the ratio was three to one. It helped balance the number of girls and boys in activities for the AD’s report to the State and for Title IX compliance purposes. In the summer I was the Teener Baseball Coach but as that was a community activity and not a school sanctioned sport, Title IX didn’t apply.
At the college level, the Office of Civil Rights looks at the ratio of men to women in the undergraduate population. If 58% of the campus is female, and that is the national average on college campuses across the country now, then 58% of the athletic budget and opportunities (within a margin of 5%) must be dedicated for women. If it isn’t, colleges have three options: 1) Spend more money on women’s programs or increase the number of women’s programs or both, 2) Cut a men’s program entirely so that the number of male and female athletes are more aligned with each other or 3) Cap the number of men in sports to achieve parity.
The South Dakota State Constitution in Article 8 Section One states: “Uniform system of free public schools. The stability of a republican form of government depending on the morality and intelligence of the people, it shall be the duty of the Legislature to establish and maintain a general and uniform system of public schools wherein tuition shall be without charge, and equally open to all; and to adopt all suitable means to secure to the people the advantages and opportunities of education.”
Based on the South Dakota Constitution’s educational clause, I don’t think the Sioux Falls School District has a leg to stand on when it comes to asking parents to pay for the cost of a state sanctioned gymnastics program and since the season will be nearly over by the time the Appeals Court rules, any order to pay money could be an ex post facto action which is prohibited by the US Constitution. In addition, I think parents are delusional when they assert that caps on boys’ participation or cuts in sports programs in general are beyond the pale as a means of complying with Title IX. Current Title IX federal enforcement practice is exactly as the Sioux Falls School district asserts it is. Rapid City Schools have a process where they cap the number of male students in sports which was the result of an Office of Civil Rights complaint from several years ago. There are only so many uniforms, coaches and places on the bus so limiting the number of participants in a particular sport has been a reality for some time regardless of Title IX.
It is a difficult situation in Sioux Falls made more difficult by budgets, federal law, past athletic tradition and parents’ understandable desire to maximize opportunities for their children. There is the old saw, “There are two sides to every story.” When I was a member of the South Dakota Legislature I found that not to be the case; there are more like six sides to every story. The Feds in the Justice Department’s Office of Civil Rights have their history and interpretation of Title IX, that’s one side. The parents of gymnasts have their children and their current interests to consider, that’s another side. Past participants in the gymnastic programs recall their comradery, triumphs and fond memories, that’s another side. Federal judges have the written law and precedent to consider, that’s another side. The School District has enrollments, budgets and personnel decisions to consider, that’s another side. The general public with no kids in gymnastics have their perceptions and opinions, that’s another side.
I’m curious to find out where all this ends up because it will have momentous implications and ramifications for every school district in South Dakota.