February 8, 2011

The Honorable John Kline

U.S. House Committee on Education and the Workforce

2181 Rayburn House Office Building

Washington, D.C. 20515

Dear Chairman Kline:

As explained in detail below, recent developments related to the application of Title IX in K-12education pose a serious threat to high school athletics. It is the belief of the IndependentWomen’s Forum, a 501(c)3 non-profit organization dedicated to women and public policy, thatsuch a threat can and should be avoided. We therefore encourage you, through the work of theU.S. House Committee on Education and the Workforce, to investigate this matter to the fullestextent possible in order to spare significant cuts to athletic programming and save millions oftaxpayers’ dollars during an economically challenging time.

While Title IX, the landmark 1972 law that bans sex discrimination in educational programming,applies to many areas, it is best known for its role in regulating college athletics. Schools musttake Title IX into account in a variety of areas including the quality of facilities available to eachsex, scholarship amounts, and participation rates. It is the last area that has caused the mostcontroversy over the years.

In 1979, the Office for Civil Rights (now housed in the Department of Education) developed athree-part test for schools to demonstrate Title IX compliance regarding participation rates. Aschool was deemed in compliance if they met any of the following measures:

1) Providing athletic programs proportionate to the gender ratio of the overall studentpopulation (i.e. if 57 percent of the student body is female, then 57 percent of athletesmust also be female)

2) Providing historical expansion of opportunities for the underrepresented sex (i.e. showingprogress toward such a proportional gender quota)

3) Meeting the interests and abilities of the underrepresented sex

Of the three options, the proportional gender quota is the only measure to provide schools andthe government with clear-cut numbers. It was also deemed a legal “safe harbor” by theDepartment of Education in the 1990s. It is no surprise then, that proportionality is theenforcement measure of choice for schools. Attempting to comply via the other two options canstill leave schools vulnerable to lawsuits and investigations. Unfortunately, this reliance onproportionality has led to some unintended consequences.

With rising female enrollments (women make up six in every ten undergraduate studentsnationally), schools are left with two routes to meet proportionality’s demands: add women’steams or cut men’s teams. The route of cutting men’s programming is often attractive as it alsoreduces schools’ spending on athletics, which is even more attractive in a down economy. Justlast month, University of Delaware and Bemidji State University cut men’s sports programs.

Those cuts are part of a significant historical trend: a 2007 longitudinal study of NCAA athleticparticipation data confirmed that over a 25-year period, opportunities for men have declined.From 1981 to 2005, male athletes per school declined 6 percent and men’s teams per schooldropped 17 percent. Meanwhile, female athletes per school rose 34 percent and women’s teamsper school rose 34 percent. The total number of women’s teams has exceeded the number ofmen’s teams since 1995. It is great to see more opportunities for women, but there is no reasonthat such opportunities should come at the expense of opportunities for men. Using Title IX insuch a fashion flies in the face of the anti-discriminatory spirit of the law.

Now, a new effort is threatening to bring the strict proportionality standard (and thecorresponding cuts to men’s athletics) to the high school level. In November, the NationalWomen’s Law Center filed administrative complaints against 12 school districts claiming thatthey were not providing enough competitive opportunities for female athletes based onproportionality.

Proportionality’s rigid standards have taken a toll on college athletics. There is no reason tobelieve that the results would be any different at the high school level. In fact, proportionality’snegative impacts are likely to be more pronounced, as many more students participate in highschool athletics than collegiate athletics. Adopting the three-part test in high schools in thecurrent economic climate would ultimately sideline up to 1.3 million male high school athletes.

There are also serious legal concerns as to whether the proportionality standard even applies tohigh schools. Enclosed is a letter sent by the Pacific Legal Foundation to the Office of CivilRights that challenges the assertions made by the NWLC in their complaints. According to thePacific Legal Foundation (an organization that has extensive litigation experience with respect torace- and sex-based discrimination and preferences, the Civil Rights Act, and many otherrelevant legal areas), the approach to Title IX compliance advocated by the NWLC likelyviolates the Equal Protection Clause.

Specifically, a high school following three-part test would be subjecting boys to disparatetreatment without sufficiently probative evident that such treatment is needed to combat sexdiscrimination. Additionally, the NWLC complaints contain a misleading sleight of hand: theword “intercollegiate” has been replaced by “interscholastic” in a blatant attempt to misleadschool districts that the 1979 Title IX compliance measures apply to high schools, when in realitythey were designed for colleges and universities.

Given all the problems with proportionality at the collegiate level, it seems imprudent to expandthe same method of enforcement to the high school level. In addition to being unfair to manyhigh school athletes, such a move would also require significant government resources to fundinvestigations of school districts. At a time marked with massive budget deficits, suchinvestigations hardly seem like a wise use of taxpayer dollars.

The controversy over Title IX compliance at the high school level is not likely to go awayanytime soon. As this is a matter that could potentially affect millions of high school athletes, webelieve at the Independent Women’s Forum that this issue deserves a proper public debate. Weurge you and your committee to investigate this issue.

Thank you for your attention to the matter.


Carrie Lukas

Executive Director

Independent Women’s Forum