Federal

Title IX Guidance ‘Problematic,’ Critics Say

By Christina A. Samuels — March 30, 2005 5 min read

New Department of Education guidance on how colleges may comply with Title IX regarding athletic opportunities for women was met with criticism by women’s advocacy groups, but was welcomed by those who believe enforcement of the law has led to the elimination of some men’s teams.

The guidance, issued by the department’s office for civil rights as a “dear colleague” letter to educators on March 17, addresses a three-part test the Education Department uses to determine whether school athletics are in compliance with Title IX of the Education Amendments of 1972.

“Additional Clarification of Intercollegiate Athletics Policy: Three-Part Test -- Part Three,” is available from the Department of Education’s Office for Civil Rights.

The law prohibits sex discrimination in educational programs receiving federal funds and is credited with opening up wider athletic opportunities for high school girls and college women. The Education Department’s Title IX regulations require schools and colleges to provide equal athletic opportunities for both sexes. An institution can prove its compliance by meeting any single prong of the three-part test.

One prong is based on comparing the proportion of female students enrolled in an institution with the percentage of female participation on its sports teams; the second examines whether the school has a history and continuing practice of expanding athletic opportunities for women; and the third looks at whether the school is effectively accommodating women’s athletic interests and abilities.

Colleges have most often relied on the first prong—the so-called proportionality test—to demonstrate compliance, but some advocacy groups say reliance on that test has led to the elimination of some men’s teams, particularly in gymnastics, swimming, and wrestling, to reach proportionality between men’s and women’s sports. College officials have said they have used the proportionality prong because it’s considered a “safe haven” under court rulings.

The new Education Department guidance, which the department termed a “clarification,” is aimed at convincing institutions that they can safely use the third prong of the compliance test if they periodically survey the underrepresented sex, typically women, in their student enrollments.

The criticism is “unwarranted and misinformed,” department spokeswoman Susan Aspey wrote in an e-mail March 24. “Schools don’t have to use the survey,” she said. “And they can’t use the model survey to avoid their Title IX obligations.”

The department also provided a “user’s guide” to help institutions develop the student surveys, which the guidance suggests can be conducted over the Internet. The guide provides model questions, such as “Do you believe that you have the ability to participate (in a particular sport) at the level at which you indicated interest?” and advice on how to interpret the results.

The guidance stresses that “schools are not required to accommodate the interests and abilities of all their students,” and that the burden of proving an institution is not in compliance with Title IX rests on the department’s civil rights office.

Although the guidance is primarily aimed at colleges and universities, it will have an impact on high schools, said Bob Gardner, the chief operating officer of the National Federation of State High School Associations in Indianapolis. But high schools have typically relied on the compliance test’s other two prongs to gauge whether they’re meeting the athletic needs of girls.

Because they rely less on proportionality, high schools typically have not cut boys’ teams, Mr. Gardner said.

E-Mail Response Rates

In 2002, then-Secretary of Education Rod Paige formed a 15-member commission to study Title IX and athletics. The panel’s majority recommended in part to expand interest surveys and that the department look at other ways for schools to prove they’re complying with the law beyond the three-part test.

Amid an outcry from women’s advocacy groups, Mr. Paige decided not to alter the department’s Title IX regulations. Now, women’s groups and others are protesting the latest development.

“In our opinion, this is their attempt to do what they couldn’t do through the commission, because of the public outcry at the time,” said Neena Chaudhry, a lawyer with National Women’s Law Center in Washington.

Ms. Chaudhry said she was concerned about the Education Department’s push to have institutions rely on a survey of students, particularly one that is e-mailed to them.

“If you e-mail that to all your students and they don’t respond, you can take that as a lack of interest,” she said. “Survey response rates are notoriously low, and then you’re going to e-mail it? Who’s going to respond to that?

“We think in a way this allows schools to skirt the law,” Ms. Chaudry added.

Though the model survey asks students what sports they’d be interested in playing or what they have played, it doesn’t require schools to look at what athletic opportunities are provided by nearby high schools, she said.

But Mike Moyer, the executive director of the National Wrestling Coaches Association, based in Lancaster, Pa., called the guidance “a step in the right direction.”

The association sued the Education Department in 2002, claiming that its Title IX regulations had, in effect, caused schools to cut some men’s sports. In 2004, the U.S. Court of Appeals for the District of Columbia Circuit upheld an earlier dismissal of the suit, but the association has appealed to the U.S. Supreme Court.

“This is more clarification, and hopefully it’s going to result in more university administrations feeling they can lean on this prong,” he said. “It provides a clearer direction in how to assess interest. It’s a more common-sense alternative to gender quotas.”

Laura Capps, a spokeswoman for Sen. Edward M. Kennedy of Massachusetts, the ranking Democrat on the Senate Health, Education, Labor, and Pensions Committee, called the e-mail survey method “problematic” and said her boss was worried it could have a negative impact on women’s athletics.

Myles Brand, the president of the National Collegiate Athletic Association, said the e-mail survey “will not provide an adequate indicator of interest among young women to participate in college sports, nor does it encourage young women to participate—a failure that will likely stymie the growth of women’s athletics.”

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