April 12 2010

IWF in the News: A Move Toward Common Sense on Title IX

Allison Kasic

At a time when every major bill coming out of Congress seems to push 2,000-plus pages, it is easy to forget that arguably the most sweeping and controversial piece of higher education policy in history, Title IX, was a mere 36 words in the Higher Education Amendments Act of 1972. Some laws, it turns out, pack quite the punch.

At first glance Title IX hardly seems controversial. It simply prohibits discrimination on the basis of sex in any program or activity receiving federal financial assistance. In practice it affects everything from sexual harassment policies to staff hiring procedures to athletics programs. It is that last area that has sparked quite the firestorm, providing fodder for countless court cases, policy debates, gender equity seminars, and, most recently, a report from the U.S. Commission on Civil Rights.

The Commission's report, like most of the greater Title IX policy debate, centered on compliance - how does a school prove it has prohibited sex discrimination in its athletics programs? The critical guidance on this front came in 1979 from the Office for Civil Rights, now housed within the U.S. Department of Education, in what is commonly called Title IX's "three-prong test." Under this test, a school can prove compliance by one of three methods: a) showing that intercollegiate participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments, b) showing a history and continuing practice of program expansion in response to the interest and abilities of the underrepresented sex, or c) demonstrating that the interests and abilities of members of the "underrepresented" sex have been fully and effectively accommodated by the school's program.

Theoretically, all three compliance options hold equal weight. In reality, Prong One's proportionality standard is the long-term goal that schools work toward. From a legal standpoint, it is easy to see why. Proportionality provides clear cut numbers to prove compliance. If 53 percent of the student body is female and 53 percent of athletes are female, a school is safe from investigations and lawsuits. Proportionality has even been declared by the Office for Civil Rights as a legal "safe harbor" for schools. With their more qualitative wording, Prongs Two and Three simply cannot offer such protection. Uncertainty surrounding what constitutes an acceptable level of program expansion or an acceptable way of measuring student interest and abilities means that even schools with the best of intentions of complying with Title IX via Prongs Two and Three remain vulnerable to lawsuits. Schools tend to view such options, therefore, as holding patterns until proportionality can be met.

Unfortunately, this fixation on proportionality has led to some to ironic, and unfortunate, outcomes for a law intended to promote gender equity. When proportionality was thought up, women were the minority of both the general student body and the athletes on virtually every campus. Those demographic facts coupled with unmet athletic demand and a generally prosperous economy made it relatively easy for schools to add female teams to their athletic department and accordingly comply with Title IX. But, since the 1990s, schools have had a much harder time meeting proportionality's demand. Women are now a strong majority on most campuses (six out of every ten students nationally). That means that for most schools to be proportional sixty percent of their athletes must also be female. With already large athletic departments and strong demand for men's sports, many schools have opted to reach proportional standards by cutting men's programs rather than adding additional female programs.

In 2007, longitudinal analysis from the College Sports Council of NCAA data confirmed this alarming trend. From 1981 to 2005, male athletes per school declined six percent and men's teams per school dropped 17 percent. In that same time period, both female athletes per school and women's teams per school rose 34 percent. Every male sport except baseball has decreased or remained static, with non-revenue sports such as wrestling, tennis, and gymnastics taking the hardest hits.

In light of these trends and with schools clamoring for increased flexibility and guidance on ways to comply other than proportionality, the Office for Civil Rights responded in 2003 and again in 2005 with additional clarifications on acceptable ways to measure student interest. This attempt to flesh out Prong Three's requirements gave hope for a viable alternative to proportionality's strict demands. OCR laid out that a school is in compliance with Prong Three unless there is a sport for the underrepresented sex in which a) there is unmet interest sufficient to sustain a varsity team, b) there is sufficient ability to sustain a team in the sport, and c) there is a reasonable expectation of intercollegiate competition for a team in the sport within the school's normal competition region. OCR's guidance is best known, however, for the measurement mechanism it proposed to measure such student interest: a comprehensive student survey known as the "Model Survey." With this survey, Prong Three finally had a government-approved, quantitative measure similar to proportionality, providing clear cut numbers to show if a school is in compliance or not. In other words, the clarification did not establish new standards for Title IX, but rather provided detailed guidance for how a school could prove compliance with Title IX's existing standards.

Backlash to OCR's guidance was immediate with many women's groups and even the NCAA voicing strong opposition to the Model Survey. Many critics portrayed the Model Survey as an inaccurate e-mail questionnaire that was likely to garner a low response rate from students. Such a characterization is grossly inaccurate, as OCR recommended making the Model Survey a part of mandatory class registration. Even if a school were to distribute the Model Survey via e-mail initially (which is allowed), OCR still requires follow-up measures to ensure a high response rate.

Debate over the model interest survey was so intense that it caught the attention of the U.S. Commission on Civil Rights, who took up the issue in May 2007 by assembling a panel of experts including representatives from the U.S. Department of Education and the NCAA. The Commission's analysis recently culminated with a report issuing a series of recommendations concerning Prong Three.

Through their analysis, the Commission found that the Model Survey "currently provides the best method available for attaining Prong Three compliance because it offers institutions a flexible and practical, yet rigorous means of attaining a high student response rate." OCR should therefore "continue to encourage institutions to use the Model Survey as a method of complying with Title IX, rather than relying on mechanical compliance with proportional representation, which may result in unnecessary reduction of men's athletic opportunities."

Going beyond mere endorsement of the Model Survey, the Commission went on to recommend a key reform to Prong Three to ensure fair treatment of both sexes. Specifically, they suggest that Prong Three regulations "be revised to take explicitly into account the interest of both sexes rather than just the interest of the underrepresented sex and that the Model Survey by structured accordingly." Such a bold move would do wonders to restore the anti-discriminatory purpose of Title IX, which has fallen by the wayside in recent years as men's teams have been eliminated in the name of "equality." A truly anti-discriminatory policy should ensure that all students, regardless of sex, are treated fairly. A comprehensive survey of all students, if issued correctly, would provide a thorough representation of athletic interest on campus in a way that a survey of only one sex never could.

Also evident in the Commission's report is that the surface objections to the mechanisms of the Model Survey mask a deeper critique of Prong Three. Many critics may have voiced concern that the Model Survey might get caught in a spam filter, but when pushed on the issue, such critics admit that they really oppose any interest survey and thus are anti-compliance via Prong Three. Take Jocelyn Samuels of the National Women's Law Center for example. In her testimony to the Commission, Samuels maintained that surveys are inadequate to determine the relative interest of men and women in sports because men are culturally more likely to profess an interest than women. Findings from such surveys therefore reflect the discrimination that already limits women's opportunities to participate in sports.

The Commission roundly rejected such concerns in their report, saying that "female students are fully capable of expressing interest in athletics, or lack thereof, advocates for particular views on Title IX compliance should not devalue or dismiss their perspectives." They even call out the NCAA specifically on this issue, asking that the NCAA "reconsider its objection to the Model Survey and not discourage educational institutions from using student interest surveys or urge them to avoid their use, since college students are adults capable of assessing their own interest in sports."

The Commission's recommendations, taken as a whole, represent a commonsense policy agenda that, if implemented, would alleviate the perverse and rigid incentives of proportionality by providing schools with a more flexible, student-centered means of Title IX compliance. The current reliance on proportionality means that, in practice, Title IX is little more than a numbers game that pays no regard to student interest. Any reasonable policy concerned with providing equitable opportunities for student should take interest into account. The Model Survey is a useful mechanism to do just that, and it's great to see a student-centered---rather than a quota-centered approach---get support from the Commission. Let's just hope that the Title IX lobby takes the advice to heart.

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 Allison Kasic is a senior fellow at the Independent Women's Forum in Washington, D.C. 

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