By: John Olorin
As colleges and universities achieve a near-equal gender split in their student bodies, athletic departments across the country are cutting the men’s teams for smaller sports to maintain compliance with Title IX. The result is that, while schools are getting closer to offering an equal number of opportunities for both male and female athletes, there is a growing gap in the diversity of those opportunities. In 2020, Brown University announced changes to the structure of its athletic department as part of University President Christina Paxson’s “Excellence in Brown Athletics Initiative.” The changes included promoting the women’s sailing and co-ed sailing teams to varsity status and removing varsity status from the men’s and women’s fencing teams, the men’s and women’s squash teams, and men’s track, field, and cross country teams, among others, demoting them to club status. After significant pushback from students and alumni, Brown agreed to keep the men’s track, field, and cross country teams as varsity sports. That acquiescence led to a higher number of male athletes than originally anticipated, and Brown was promptly sued for violating Title IX.
In the five decades since Title IX was enacted, the barometer for what exactly it means to be in compliance with Title IX has varied considerably. To better aid universities and courts in their analyses, the Office for Civil Rights (OCR), under what was then known as the Department of Heath, Education, and Welfare, issued a Policy Interpretation in 1979. That Policy Interpretation contained a three part test to determine whether an institution was complying with Title IX. In 1996, the OCR issued a sequel piece of guidance entitled Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Test. These two pieces of guidance provide the standard many courts use today to determine whether a school is in compliance.
The three-part test requires that a university abide by at least one of the following provisions to be compliant with Title IX. The court should examine:
1) Whether intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments; or
2) Where the members of one sex have been and are underrepresented among intercollegiate athletics, whether the institution can show a history and continuing practice of program expansion which is demonstrably responsive to the developing interests and abilities of the members of that sex; or
3) Where the members of one sex are underrepresented among intercollegiate athletes, and the institution cannot show a history and continuing practice of expansion, as described above, whether it can be demonstrated that the interests and abilities of the members of that sex have been fully and effectively accommodated by the present program.
The most often used factor and the most litigated factor is the first prong of the test—the substantial proportionality test—whereby a school can show compliance by comparing the ratio of female athletes to the overall female student body and the ratio of male athletes to the overall male student body. The OCR stated, “[b]ecause this determination depends on the institution’s specific circumstances and the size of its athletic program, OCR makes this determination on a case-by-case basis, rather than through use of a statistical test.”
To date, there is no bright-line number that would put an institution outside the bounds of Title IX compliance, but courts have indicated what variances are acceptable or unacceptable on a case-by-case basis. In a suit against Quinnipiac University, a variance of 3.62% was considered to be out of compliance. In a case against St. Cloud State University, variations of 2.5% and 2.9% were held to be violations of Title IX. Brown is subject to a 2.25% variance, meaning that the female athlete-to-student ratio and the male athlete-to-student ratio must be within 2.25% of one another to be in compliance.
In order to remain in compliance, universities must add only women’s teams in a more diverse range of sports to offset the larger number of male athletes. Brown, for example, after listening to the concerns of its community,decided not to downgrade the men’s track teams and was subsequently compelled by an out-of-court settlement to reinstate the women’s equestrian and women’s fencing teams to comply with Title IX and the Joint Agreement. The clear culprit behind this trend is football. Football is a male-dominated, highly profitable sport. Football is often considered a cultural touchstone for universities—a source of pride, money, and alumni engagement. Some football teams can have over 100 players on the roster and there is no female sport equivalent that fields a comparable number of only female athletes.
If a university’s enrollment is anywhere close to an even gender split, and if that school has a football team, the substantial proportionality test for Title IX compliance requires the school to field and support a plurality of women’s teams and athletes while effectively preventing the school from supporting men’s teams for those same sports. As more universities close the gender gap in enrollment, the goal of an equal number of opportunities for each sex is within grasp, but equality in the diversity of opportunities available to both genders is slipping away. Young women will be able to seek scholarships and placement on a wide range of teams, from more popular sports like soccer or basketball to less popular sports like fencing or sailing. Young men, however, while they will have the same number of opportunities available to them as women, will only have the larger, more popular, more profitable sports available to them, like football, basketball, and baseball. Title IX’s mission is equal opportunity and now that institutions are reaching near-equal enrollment, it may be time to reexamine if the substantial proportionality test is the best way to hold these institutions accountable and whether “equality” still means the same thing it did fifty years ago.
 Cohen v. Brown Univ., 16 F.4th 935, 942 (1st Cir. 2021).
 Id. at 942, n.1. See also Li Goldstein, Brown Transitions 11 Varsity Team to Club Status, Brown Daily Herald (May 28, 2020), available at https://www.browndailyherald.com/article/2020/05/brown-transitions-11-varsity-teams-to-club-status/; Greta Anderson, A Winning Plan and a Major Letdown, Inside Higher Ed (June 1, 2020), available at https://www.insidehighered.com/news/2020/06/01/brown-university-cuts-11-varsity-sports. Club teams do not recruit athletes, they receive minimal—if any—financial support from athletic departments, their athletes do not receive athletic scholarships, and they are rarely part of a defined competition league.
 Cohen, 16 F.4th at 942 (noting that, after the “fierce backlash” regarding the men’s track, field, and cross country teams, President Paxson warned that reinstating those teams would push Brown out of compliance and that there would need to be other subsequent changes to the athletic department).
 See id. See also Cohen v. Brown Univ., 809 F. Supp. 978 (D.R.I. 1992); Cohen v. Brown Univ., 991 F.2d 888 (1st Cir. 1993); Cohen v. Brown Univ., 879 F. Supp. 185 (D.R.I. 1995); Cohen v. Brown Univ., 101 F.3d 155 (1st Cir. 1996). After extensive litigation, Brown entered into a Joint Agreement, approved by the district court, which required the “percentage of each gender’s athletes at Brown to be within 3.5% or 2.25% (depending on circumstances) of each gender’s respective undergraduate campus presence.” Cohen, 16 F.4th at 941.
 See 20 U.S.C. § 1681 (“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance”); 34 C.F.R. § 106.41 (requiring institutions that receive federal financial assistance “provide equal athletic opportunity for members of both sexes”).
 See, e.g., Grove City College v. Bell, 465 U.S. 555, 570-74 (1984) (holding that Title IX only applies to programs that are federally funded, not institutions that receive federal funding as a whole, so Title IX wouldn’t apply to athletic programs if those programs do not directly receive federal funding). Congress superseded this ruling with the Civil Rights Restoration Act of 1988, which made Title IX apply to intercollegiate athletics again. 20 U.S.C. §1687(2)(a).
 Title IX of the Education Amendments of 1972: A Policy Interpretation: Title IX & Intercollegiate Athletics, 44 Fed. Reg. 71,413 (1979) (codified at 45 C.F.R. pt. 86) [hereinafter 1979 Policy Interpretation].
 1979 Policy Interpretation of 1979, 44 Fed. Reg. 71,418.
 Dep’t of Educ., Office for Civil Rights, Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Test (Jan. 16, 1996), available at http://www.ed.gov/print/about/offices/list/ocr/docs/clarific.html [hereinafter 1996 Clarification Letter].
 1979 Policy Interpretation, 44 Fed. Reg. 71,418; 1996 Clarification Letter, supra note 9.
 See Transmittal Letter from Norma V. Cantu, Assistant Sec’y for Civil Rights, accompanying 1996 Clarification Letter, supranote 9.
 If, for example, an “institution’s enrollment is 52 percent male and 48 percent female and 52 percent of the participants in the athletic program are male and 48 percent female, then the institution would clearly satisfy part one.” 1996 Clarification Letter, supra note 9.
 Id. “For instance, Institution A is a university with a total of 600 athletes. While women make up 52 percent of the university’s enrollment, they only represent 47 percent of its athletes. If the university provided women with 52 percent of athletic opportunities, approximately 62 additional women would be able to participate. Because this is a significant number of unaccommodated women, it is likely that a viable sport could be added. If so, Institution A has not met part one. As another example, at Institution B women also make up 52 percent of the university’s enrollment and represent 47 percent of Institution B’s athletes. Institution B’s athletic program consists of only 60 participants. If the University provided women with 52 percent of athletic opportunities, approximately 6 additional women would be able to participate. Since 6 participants are unlikely to support a viable team, Institution B would meet part one.”
 See, e.g., Roberts v. Colorado State Bd. of Agric., 998 F.2d 824, 830 (10th Cir. 1993) (holding that an athletic ratio within 10.5% of its overall ratio did not pass the substantially proportionate test).
 Biediger v. Quinnipiac Univ., 728 F. Supp. 2d 62, 111-13 (D. Conn. 2010), aff’d, 691 F.2d 85 (2d Cir. 2012).
 Portz v. St. Cloud State Univ., 401 F. Supp. 3d 834, 845, 863 (D. Minn. 2019).
 Cohen, 16 F.4th at 951-52.
 See Letter from Christina Paxson, President, Brown Univ. (June 6, 2020), available at https://www.brown.edu/about/administration/president/statements/addressing-brown-varsity-sports-decisions. Many of those protesting the elimination of the men’s track teams noted that the decision disproportionately affected Black male student-athletes. President Paxson specifically cited these concerns as a primary reason the University decided to reinstate the teams. Id.
 Cohen, 16 F.4th at 951. See also, e.g., Kelley v. Bd. of Trs., 35 F.3d 265, 272-73 (7th Cir. 1994) (describing the university’s decision to cut the men’s swimming program but retain the women’s swimming program); Katie Thomas, Colleges Cut Men’s Programs to Satisfy Title IX, N.Y. Times (May 1, 2011), available at https://www.nytimes.com/2011/05/02/sports/02gender.html (discussing the University of Delaware’s decision to demote the men’s track and cross country teams out of concern for Title IX compliance); Molly Hensley-Clancy, Colleges Cut Sports to Save Money Amid the Pandemic. Then Came the Title IX Lawsuits,Washington Post (March 25, 2021), available at https://www.washingtonpost.com/sports/2021/03/25/college-sports-cuts-title-ix/ (mentioning that many schools chose to cut only or predominantly men’s teams under press
 Jay Larson, Note, All Sports are Not Created Equal: College Football and a Proposal to Amend the Title IX Proportionality Prong, 88 Minn. L. Rev. 1598, 1608-09 (2004) (noting that NCAA Division 1-A football teams can carry an average of 118 team members and bring in millions of dollars in revenue).
 Chris Isidore, Without College Football, Many Other Sports Will Be on the Chopping Block, CNN (Aug. 14, 2020), available at https://www.cnn.com/2020/08/14/business/college-football-dollars/index.html (noting that, in 2018, the University of Texas netted $113 million from football and that, of the 660 colleges and universities that play football, the top 65 institutions collectively brought in $4 billion in revenue from football).
 Compare Larson, supra note 19, at 1608-09; Charles P. Beveridge, Note, Title IX and Intercollegiate Athletics: When Schools Cut Men’s Athletic Teams, 1996 U. Ill. L. Rev. 809, 837-38 (1996) (detailing that college football teams can have over 100 players and that NCAA rules permit colleges to offer eighty-five scholarships per team to male athletes) with Greg Johnson, Enhancements Implemented for DI Women’s Volleyball Championship, NCAA (Nov. 15, 2021), available at https://www.ncaa.com/news/volleyball-women/article/2021-11-15/enhancements-implemented-2021-di-womens-volleyball-championship (noting that the NCAA caps the number of eligible volleyball players at 15 per team at competitions). Volleyball could be considered a sport dominated by women. There are 1,069 NCAA women’s volleyball teams but only 155 NCAA men’s volleyball teams. See Next College Student Athlete, Complete List of Women’s Volleyball Teams, NCSA Sports, available at https://www.ncsasports.org/womens-volleyball/colleges (listing 334 Division 1 teams, 298 Division 2 teams, and 437 Division 3 teams); Next College Student Athlete, Complete List of Men’s Volleyball Teams, NCSA Sports, available at https://www.ncsasports.org/mens-volleyball/colleges (listing 23 Division 1 teams, 25 Division 2 teams, and 107 Division 3 teams). Cheerleading, another activity dominated by women, is, perplexingly, not considered a sport. See Biediger v. Quinnipiac, 691 F.3d 85, 105 (2nd Cir. 2012) (affirming the district court’s holding that cheerleading cannot count as a varsity sport).
 See Kristin Rozum, Comment, Staying Inbounds: Reforming Title IX in Collegiate Athletics, 18 Wis. Women’s L.J. 155, 168-71 (2003) (identifying three unintended consequences born from the substantial proportionality test including the elimination of smaller men’s sports, disregard for the actual interest levels of student-athletes, and inhibiting the development of women’s sports by encouraging large rosters regardless of skill level).