The Independent Women’s Forum thanks Chairman Hoekstra and the Members of the Subcommittee for hosting a review of the Department of Education’s Office for Civil Rights (OCR). The IWF is a nonprofit, nonpartisan group of independent women who believe in freedom, achieved through limited government and individual responsibility. The IWF does not accept any funding from the federal government. Since 1997, the IWF has conducted an educational program, known as Play Fair, to examine the impact and consequences of Title IX policies as interpreted and implemented by the OCR.

The OCR has shown itself to be aggressive in promoting a political ideology of preferential treatment for women and minorities at the expense of high educational expectations and high educational performance. In the area of athletics, the agency’s pursuit of a gender quota has led to the wholesale destruction of men’s athletic opportunities, a form of discrimination clearly at odds with the statute and regulatory language of Title IX.

This statement will address two areas of OCR enforcement under examination in today’s hearings: athletics policies and the use of standardized tests.


The OCR implements a Policy Interpretation written twenty years ago in such a heavy-handed manner as to leave universities, colleges and high schools in a position of imposing an arbitrary gender quota in their athletics programs. This policy has never been reviewed or approved by Congress and is directly at odds with the statute language which: 1) prohibits discrimination based on sex, 2) states that the statute does not require gender quotas, and 3) is not to be used to make reparations to one sex for past discrimination (20 USC § 1681). The actions of this agency violate the statute it is supposedly upholding.

The portion of the Policy Interpretation most in dispute is the section on the accommodation of interests and abilities (45 CFR Part 86 §VII-C). In this section, the agency has created and implemented the three-prong test for athletic compliance. The OCR claims that a school has the option of demonstrating compliance with Title IX by meeting one of the following three tests:

1.Showing that intercollegiate participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments; or

2.Showing a history and continuing practice of program expansion in response to the interest and abilities of the “underrepresented” sex; or

3.Demonstrating that the interests and abilities of members of the “underrepresented” sex have been fully and effectively accommodated by the school’s program.

Pushing the Quota

In 1996, this agency issued a “clarification” of the three-prong test that identified the first prong — the proportionality quota — as the safe harbor for compliance. Although the OCR claims that schools are still allowed to chose how they will comply with this section, a representative from the OCR?s Chicago Regional Office admitted at a gender equity conference sponsored by the National Collegiate Athletic Association in May 1998 that athletics investigations begin with prong one, regardless of which prong the school under investigation believes it has met. This agency has made it clear that meeting prong one is the only acceptable alternative, making it impossible to meet the other two tests.

There is no mechanism for measuring prong three of the test, and in fact, the existence of an investigation presumes that there is unmet interest among the traditionally underrepresented sex. Under prong two, a school can only demonstrate compliance if there is a continuing practice of adding new women’s programs. This means that a school which has enhanced its existing women’s programs with such things as additional resources, facility improvements, additional scholarships, or better coaching may not be in compliance with Title IX if they have not added a new women’s team in the recent past. This penalizes schools that established numerous women’s programs in the years following the passage of Title IX. Ironically, it is a lack of resources not a lack of opportunities about which most women’s teams complain. However, the OCR would prefer to see a school meet its gender quota by increasing the number of underfunded women’s teams on a campus from nine to eighteen rather than allow the schools to provide the resources necessary to make their nine teams more competitive.

The Consequence of Poor Policy

The most pernicious result of the OCR’s focus on the participation quota has been the unintended consequence of destroying men’s athletic opportunities. Schools with limited resources find themselves forced to reduce the number of male athletes by steaming into the “safe harbor” of gender quotas. Women’s teams cannot be filled due to lack of interest and men are not allowed to stay because there are too many of them. This is precisely the type of sex discrimination the statute was intended to prevent.

There are also many cultural factors that can impede a school’s ability to meet the gender quota. The National Center for Education Statistics (NCES) 1998 report on undergraduate enrollment reveals that today’s college population makes it demographically impossible for a school to meet the participation quota and still be able to accommodate the interests, abilities and competitive opportunities for both sexes.

Nationwide, fifty-seven percent (57%) of today’s undergraduate students are female. This percentage is remarkably higher at small liberal arts colleges and at historically black colleges. Publications such as the Chronicle of Higher Education, the New York Times and the Washington Post have all printed articles in the past three months exploring the decreased number of men on campus. These articles and the NCES go on to point out that the college population is not only more female, but more varied than ever before. For example, twenty-seven percent (27%) of undergrad students are aged thirty or older, with two-thirds of students over age forty being women. The NCES also reports that twenty-one percent (21%) of undergrads are married, fifteen percent (15%) of undergrads have dependents, and eleven percent (11%) of undergrads are single parents. Those with children are predominantly female. Finally, an overwhelming percentage (79%) of undergrad students work a job in addition to attending school, with more than half of those students working more than twenty hours per week.

In today’s campus environment, it is inconceivable that a school’s athletic program might reflect the gender ratio of its undergraduate population when that population is overall less interested, or even available, to play varsity sports. The OCR does not allow for any compliance mechanism that takes into account the interest levels of students in pursuing a varsity athletic experience. Schools find that unless they have unlimited funds to create and recruit women to new teams, they are forced to drop men’s programs. The anecdotal and statistical evidence showing that women are interested in sports in lesser numbers than men has had no bearing on the OCR’s policies.

Violation of Civil Rights Laws

The participation quota is also at odds with other major civil rights statutes applicable to schools such as Title VI of the Education Amendments of 1972 and Title VII of the Civil Rights Act of 1964. Title VI prohibits racial discrimination on campus. The drafters of Title IX simply reiterated the Title VI language and substituted the word “sex” for “race, color or national origin.” The Supreme Court recognized this and concluded that Title IX be applied in the same manner.

Imagine a high school with a fifty-percent (50%) African-American enrollment and a fifty-percent (50%) white enrollment. The school offers a track team with fifty spaces, and tryouts show that 100 students are both interested and able to compete in varsity track, sixty-five of whom are African-American and thirty-five of whom are white. Under the participation quota as practiced in Title IX, Title VI would require that the team allot twenty-five spaces for the sixty-five African-American athletes and twenty-five spaces for the thirty-five white athletes. This result would constitute blatant racial discrimination. Yet, in the case of sex, it’s called gender equity

We can also examine the impact of the participation quota in the context of employment discrimination under Title VII of the Civil Rights Act. The courts have determined that a difference between the proportion of male and female workers in a particular position and their proportion in the general population is not proof of discrimination. Discrimination is not necessarily caused by the failure of men and women to gravitate toward a particular line of work, or toward particular athletic interests in equal numbers. Women dominate college English, communications, social studies, health services, dance and theater departments. The universities, colleges and high schools governed by Title IX are being punished for failing to prove a level of interest in sport among women that simply does not exist outside the school grounds.

This committee should exercise its authority to review the use of the 1979 Policy Interpretation, the 1996 Policy Clarification and the OCR’s conduct of athletics investigations in the context of today’s college populations.

The Incident of the One Percent Rule

The OCR has done little in the way of serious policy review. Instead, it has approached athletics issues in a piecemeal manner, most often in response to the complaints filed by outside organizations. A recent example is the change to the distribution of athletic scholarships.

In 1997, the National Women’s Law Center filed complaints against twenty-five Division I schools with the OCR. The complaints focused on the distribution of scholarships on these campuses. Under the section addressing financial assistance (45 CFR Part 86 ?VII-A), a school is expected to distribute athletic financial aid in proportion to the gender of the students in the athletic program. For example, if forty percent (40%) of the athletes are female, than approximately forty percent (40%) of the financial aid is to be spent on female programs. The policy does not require an exact student-by-student comparison because there are two different types of scholarships — head count, or full-ride scholarships, and equivalent scholarships which can be divided among several players. The OCR examines the overall distribution of monies for the entire program.

Upon completing its investigation of these twenty-five schools, the OCR found some of the schools to be in compliance with the scholarship distribution section, and some to be too far off the mark. But how far was too far? The agency wrote a letter to the non-compliant schools and the NCAA stating that it would tolerate only a one percent (1%) deviation between the proportion of female athletes in the department and the proportion of financial assistance given to female athletes.

This letter illegally established a new policy for the agency. The proposed rule defining proportional distribution of scholarships should have been published in the Federal Register for review and comment. Instead, schools under constant threat of a lawsuit or investigation are scrambling to comply with a directive that has no legal teeth in it. The agency erred in its procedure and this committee should require that the agency comply with APA procedures to establish new rules for scholarship distribution.


Recently, the OCR released a proposed rule change to strictly limit the use of standardized tests in admissions and student promotions. If this rule change is enacted, the Department of Education will have effectively transferred the mass academic failure of our nation’s public high schools onto institutions of higher learning.

There is extensive hard evidence that the SAT, for example, is an accurate predictor of collegiate success. There is no hard evidence that the SAT, or any other standardized test, is in itself discriminatory toward any student. In fact, tests such as the SAT are one of the only ways that educators can identify properly prepared students regardless of race, ethnicity or gender. The differences in outcomes on such tests reflect the woeful condition of our public schools, especially those that serve predominantly minority populations.

But not all minority school children are failing standardized tests. The Heritage Foundation recently issued a paper examining the successes of several inner-city schools that had succeeded despite the odds. One of the common factors for the success of these schools was the strict adherence to a basic curriculum of English, history, science and math, and a focus on standardized tests as measures of improvement. The Hope Academies, a network of private schools in Ohio, also focus on the use of standardized tests for its largely-minority school population. In addition to a strong core curriculum, the students know from kindergarten on that the tests are a way to track their goals. They are used to set high academic expectations, which are met by the students.

It is clear that our public school system is failing our children by defining academic standards down. It is not clear why that failure should be promoted into our universities. By prohibiting colleges and universities to measure and use academic standards in admissions, the entire process becomes a subjective exercise in preferential treatment.

The OCR has told the press that the hysteria over the use of standardized tests is blown out of proportion. The agency claims that it is not indicting all tests, but that the use of them should be limited and contextual. However, this rule change would pave the way for numerous lawsuits.

For example, if two students with similar high school GPAs and extracurricular records are applying to the same university, how could the institution determine whether both students are prepared for college work without examining the SAT or ACT scores? But if the school does, and the student with the lower score is denied admission, then the school may come under attack from either the OCR or from a federal lawsuit. So in fact, the OCR is saying that schools will no longer be allowed to use test scores for admission. If the experience of OCR policies in athletics, and in other areas such as sexual harassment, is any guidance to the future of standardized tests, then the agency is in effect outlawing the use of standardized tests as long as any difference in outcomes exists. Attacking the messenger does nothing to improve the condition of education for these children.

The IWF commends the committee for taking the initiative to examine this agency. The OCR has repeatedly overstepped its authority in the past six years and has pursued a political agenda that undermines the need for high academic standards and the ability of schools to meet students’ interests and needs. We urge the committee to fully explore the activities of this agency, and to report its findings to the proper appropriations committees to review during this agency’s reauthorization hearing.