NU falls short of first Title IX test | College

While the Husker football team stumbled to a maddening 3-9 record, the volleyball team finished as national runner-up.

The men’s basketball team won just four games in the Big Ten Conference. The women’s hoops team made the NCAA’s big dance.

And while baseball flopped as Big Ten favorites, softball brought home the league’s tournament trophy.

Women’s athletics at NU have come far since the 1972 federal passage of Title IX. The Huskers now boast women’s programs that can compete with the best.

But that doesn’t mean the school lacks challenges in creating equal opportunity for women.

During the 2020-21 school year, while 49% of students at the university were women, just over 45% of athletes were.

That opportunity gap — equating to nearly 60 women’s athletes — carries potential implications for the university and its athletic programs. Parity between women’s enrollment and athletic participation is the only sure way for a school to legally comply with Title IX’s requirement of providing equal athletic opportunity for women.

Nebraska is not alone in its lagging athletic participation for women. Some 86% of schools competing at the NCAA Division I level fall short of such parity, according to a World-Herald analysis of the latest data reported to the U.S. Department of Education.

The average participation gap for other D-I schools is roughly double Nebraska’s, though NU’s gap was on the upper end among Big Ten schools.

As the nation celebrates Title IX’s 50th anniversary this year, the persistent imbalance in women’s participation raises questions among women’s sports advocates about whether colleges and universities are meeting their obligations under the law.

“Everyone knows that 90% of these schools are out of compliance with Title IX,” said Donna Lopiano, a former star athlete and college administrator who now serves as a consultant and expert witness on Title IX issues. “Why aren’t they complying? Because they don’t want to. And there’s no policeman.”

At Nebraska, the issue has notably grabbed the attention of Athletic Director Trev Alberts, who has launched an internal team that’s reviewing NU’s conformity with the law.

Alberts said it’s clear the school doesn’t meet parity based on enrollment. The department team is now examining whether the school meets one of two other, more murky legal tests schools can pass to meet Title IX’s requirements for athletic opportunity.

The group also is exploring possible ways the school can reach gender parity. Alberts said the school has engaged with outside legal help as part of the review.

“The fact of the matter is we have work to do,” he said.

At other schools, balancing Title IX numbers in the past has sometimes led to cuts in men’s sports to help bring numbers more into balance. But rather than cutting full programs, it’s become more common in recent years for schools to tweak roster sizes in men’s and women’s sports.

Until Nebraska’s review is complete, Alberts declined to speculate on what the school might do to bring more balance to its male and female athlete numbers.

But a dive into Nebraska’s Title IX data points to one possible place the school could look: a football roster that has been by far the largest in college football.

A roster packed with home-grown walk-ons has long been a point of pride in Nebraska and was once a key part of the school’s history of national championship success. Such non-scholarship players will surely continue to be a big part of Nebraska football.

But it remains to be seen whether coach Scott Frost and NU would want to continue to stockpile quite so many players in a new era when big-time programs can easily sign transfers to fill roster holes.

World-Herald figures show that paring the football roster to match the average of other Big Ten teams would slash Nebraska’s gender gap for women athletes by nearly three-fourths.

The NCAA, Nebraska and many other schools this year are celebrating Title IX and the opportunities that the law barring sex discrimination in education has unleashed for women.

“(Title IX) has obviously been tremendously successful, and I would say at the University of Nebraska, we have been one of the biggest beneficiaries of it,” Alberts said.

The university didn’t have any varsity female athletes when Congress passed the law in June 1972. Nationally, there were roughly 30,000 women athletes compared with 170,000 men.

Now in NCAA-sanctioned schools alone, more than 185,000 women athletes participate. Male numbers have grown, too, to more than 230,000.

But given that more than 55% of college students today are women, the fact that there are substantially more males playing college sports still stands out.

“Why, 50 years later, do we still not have equity?” said Kristen Galles, a Creighton graduate who’s a Title IX litigator.

The issue is often more complicated than straight numbers.

Contrary to common belief, Title IX does not strictly require equal numbers of male and female athletes, or equal spending on them. The U.S. Department of Education requires schools to provide “equitable opportunities” for women.

To determine whether a school is meeting its obligations to create opportunity for women, Title IX regulations set out a three-part test, with schools needing to pass just one to be in compliance with the law.

Schools can comply with Title IX by providing participation opportunities for women that are “substantially proportionate” to women within the student body — the ultimate test under the law. In simplest terms, if a school’s percentage of athletes who are women essentially matches the percentage of undergraduate students who are women, it’s presumed to be in compliance with Title IX.

But few schools meet that standard. A World-Herald analysis of the latest data for school year 2020-21 showed that of 348 Division I schools, only about 50 — 14% — reported a percentage of women’s athletic participation that essentially met or exceeded their women’s enrollment.

Two of those schools are here in Nebraska: the UNO and Creighton.

At Creighton, 59% of its students were women, and 59% of its athletes were, too.

At UNO, when then-athletic director Alberts in 2011 made the controversial decision to drop football and wrestling as part of moving the school’s sports programs up to Division I, the change had the side effect of making the school instantly compliant with Title IX proportionality.

At the time, UNO had a huge gender gap favoring men, with women making up 52% of students but only 36% of athletes. Today, women make up 57% of students and 61% of athletes.

One of the big reasons Creighton and UNO can meet that test: They have no football team.

Football teams traditionally have huge rosters, and there is no sport for women like it. Schools with football teams like Nebraska must go to great lengths in adding women’s sports to match those numbers.

NU’s data for that year showed that while 48.9% of the school’s students were women, just 45.3% of athletes were, a gender gap of 3.6 percentage points.

The easiest way to think of that difference is to convert it into an “athlete gap” — the number of additional female athletes a school would need to add to reach parity with enrollment. At Nebraska, it would have required 59 additional women athletes.

Nebraska’s gap was far from the nation’s largest. Among schools from the five major football conferences, the North Carolina’s gap equated to a whopping 391 female athletes, with TCU, Virginia, Mississippi and Kentucky all exceeding 200. Kentucky currently faces a Title IX lawsuit.

North Carolina, TCU and Mississippi all had gaps of over 16 percentage points — more than four times Nebraska’s.

Among all Division I schools, the average gaps were 8 percentage points and 100 female athletes. The gap among all Division I schools totals nearly 35,000 women athletes.

Of the 14 Big Ten schools, Nebraska’s athlete gap tied Wisconsin for fourth highest.

Iowa led the Big Ten with gaps of 4.7 percentage points and 84 athletes. Rival Iowa State, a member of the Big 12, was among the small minority of schools nationally with no gap.

Rutgers was the only Big Ten school with no gap, though both Illinois and Purdue reported gaps that amounted to fewer than 10 female athletes.

Federal Title IX guidance has held that if a school’s athlete gap is consistently large enough to start a new women’s sports team, it’s too large. At both Nebraska and Iowa, the gaps in the recent data were much wider than that. 

In the end, the only way to know whether any school actually complies with Title IX is if someone calls foul. The enforcement system is completely complaint-driven, through lawsuits like the one against Iowa, or complaints filed with the Department of Education’s Office of Civil Rights.

No school under Title IX has ever lost federal funds — the ultimate penalty under the law — but they frequently have been forced to make changes due to the filing of such actions.

Some women’s sports advocates are calling on Congress to dump the complaint-driven system and simply make it a requirement for NCAA or conference membership that schools provide gender parity.

Nebraska’s current Title IX review — launched after former Husker football star Alberts returned to his alma mater as athletic director a year ago — is intended to avoid those kinds of legal entanglements.

Alberts said NU likely would try to balance gender opportunity by juggling the sizes of its current men’s and women’s rosters. A look at Nebraska’s teams shows some ways the school could try to rebalance rosters.

Federal data for the 2020 season — the most recent available — shows Nebraska’s reported 166 football players were by far the largest in the sport. The total was 20 players above the next-biggest roster and well above the averages for major college teams (121) or other Big Ten schools (122).

In the Big Ten, Michigan’s roster ranked second largest with 144 players. Ohio State, the conference’s dominant team, had 124 players, while Iowa had 130.

Frost sought to boost Nebraska’s walk-on program when he was hired in 2017 in hopes of returning Nebraska’s downtrodden football program to past glory. At the time, the school’s roster numbered around 130 players, 85 on scholarship.

But so far, more players have not translated into more wins. And now that players are free to transfer almost at will, it’s conceivable Nebraska in the future will have less need for so many walk-on players to build team depth.

Frost turned to the transfer portal to bring in 15 players since the end of last year’s 3-9 campaign — a fourth straight losing record that now has the coach on a hot seat.

Frost already may be doing some roster paring. The 166 figure for 2020 was down 10 players from the prior year. And heading into the new fall season — practice started this past week — the always-fluid roster lists 151 players. That’s still almost 25% larger than the recent average for other Big Ten teams.

Nebraska’s Title IX data suggests the men’s track roster also could come under scrutiny in the review. The school most recently reported having a total of 148 male athletes competing in indoor track, outdoor track and cross country. That was the seventh-most reported among Division I schools, and well above average.

The women’s track team was even bigger, ranking fifth nationally with 183 athletes.

Adding to the gender balance challenge at NU is the fact women’s enrollment percentage has been growing. Unlike most colleges nationally, male students on campus in Nebraska still outnumber females, though the women’s enrollment percentage rose from 46% in 2013 to 49.5% by last fall.

Roster numbers aside, NU athletic officials have long touted their compliance with Title IX’s strictures beyond sports participation, including requirements for equitable levels of facilities, coaching, equipment, recruiting, training and publicity.

All Husker athletes, men or women, scholarship or walk-on, eat at the same training tables, receive the same laptop computers, and have access to the same academic supports, life skills training and health care.

“We try hard to treat all our student athletes the same,” Alberts said.

Such attention to detail — along with the success of the women’s programs — also may be one reason Alberts senses little “tension or consternation” at the university surrounding Title IX. He’d like to keep it that way.

“We aren’t going to play games with our determination to be compliant with a federal mandate,” he said. “We are going to do things the right way.”