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Back to July Ed Reporter

Education Reporter
NUMBER 294 THE NEWSPAPER OF EDUCATION RIGHTS JULY 2010

Obama's Title IX Ruling a 'Step Backwards' for Athletic Programs
With its reversal of a Bush-era Title IX regulation that allowed colleges to survey student interest in athletics and then spend accordingly, the Obama administration strongly signaled that gender quotas are the only certain measure of compliance. In April, the Department of Education's Office of Civil Rights (OCR) rejected a recent Civil Rights Commission (CRC) finding that a survey to determine student interest is the "best method available" for adhering to the law without requiring arbitrary gender quotas.

The 1972 law prohibits discrimination on the basis of gender in any educational programs that receive federal funds, and covers a broad range of issues including hiring practices, sexual harassment, and athletics. OCR guidance indicates that schools may demonstrate athletics program compliance in one of three ways: women's sports participation at a level proportionate to their enrollment numbers (known as proportionality), an expanding number of athletic opportunities for women, or proving the school is meeting the athletic interests and abilities of women on campus.

Since Title IX (unlike other sex discrimination policies) does not require an injured party to come forward, interest groups and lawyers are free to sue schools even if no students complain. In the interest of avoiding investigations and lawsuits, schools often select proportionality as the safest of the three compliance options, especially after the 1995 Cohen vs. Brown suit. That ruling explicitly stated that proportionality was a "safe harbor" for schools wishing to avoid prosecution. The result, critics charge, is the arbitrary and unnecessary loss of many sports opportunities for men.

James Madison University explicitly cited compliance with the proportionality test in 2006 when it decided to cut seven men's teams and three women's teams to force student athletic participation to match student enrollment. Enrollment at the time was 61% female with 51% of females involved in athletic programs. "We have explored every avenue in search of an alternative to this action," said the athletic director, Jeff Bourne, but the school's lawyer counseled that cutting the teams was the "most viable alternative" for complying with Title IX proportionality.

The Civil Rights Commission recommendations released in April this year advocated the OCR's 2005 "model survey" as a means of gauging student interest and providing colleges with an objective alternative to the sort of "mechanical compliance" with proportionality enacted by James Madison and other schools. However, gender quota advocates including the National Women's Law Center, the American Association of University Women, and the NCAA dispute the CRC's assertion that surveys are a valid measure of women's interest in sports.

A common criticism of the survey method is that many students don't bother to fill surveys out or that they get lost in email spam filters. Proponents of the model survey say the 2005 guidelines are more rigorous than those laid out previously, in that they tie surveys to mandatory events such as class registration, which ensures every matriculating student will see the survey. Guidelines now also require reasonable follow-up measures for non-responses.

Feminist activists still argue that student interest survey results are insufficient and should be combined with consultations with area elementary and secondary schools, local youth sports program coaches, and an analysis of national trends. Furthermore, the critics contend, surveys are inherently unreliable as the sole measure of interest because they tended to reflect women's lack of exposure to sports. Jocelyn Samuels, Vice President for Education and Employment at the National Women's Law Center, told the CRC that surveys "are likely only to provide a measure of the discrimination that has limited, and continues to limit, sports opportunities for women and girls."

The CRC report roundly rejected such concerns and concluded that "students (including women) are fully capable of expressing their interests." Additionally, the report suggested that men also be surveyed in order to "[restore] Title IX to its original goal of providing equal opportunity for individuals of both sexes."

Women now comprise six out of ten college students nationwide, which means that under the Obama administration ruling, most schools must reserve 60% of athletic spots for women. If previous years are any indication, schools that have trouble filling all their female roster spots or have budget concerns often find cutting men's programs to be the easiest path to compliance. Sometimes, as with James Madison University in 2006, schools also cut smaller women's programs such as gymnastics to achieve exact proportionality.

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"[The Obama adminstration's ruling] is a step backwards for everyone that cares about fairness in athletics," said Jessica Gavora, vice president of policy for the College Sports Council. In her testimony before the CRC in 2007, Gavora said her organization's longitudinal study of 25 years of NCAA data showed that opportunities for women have increased under Title IX, but opportunities for men have decreased. She said from 1981 to 2005, male athletes per school declined by 6% while female athletes per school rose 34%.

Gavora also cited a University of California system survey finding that among students indicating an interest in sports, 60% were men. She added that the College Board's survey of students taking the SAT and PSAT revealed a similar breakdown, and that participation data on voluntary club sports and intramural sports on campus showed males overwhelmingly outnumbered females. Her testimony ran counter to Jocelyn Samuels' statement to the CRC that women and men are equally interested in sports, and that to believe otherwise was a stereotype and impermissible under the law.

According to data compiled by the Department of Education's Office of Postsecondary Education for 2008, 58% of intercollegiate athletics participants were men and 42% were women. National collegiate enrollment averages remain around 40% male and 60% female, which implies that many schools cannot currently demonstrate rigid proportionality quotas.

Look for more athletic programs to be cut as schools scramble to align student gender ratios with athletic participation to avoid becoming targets of the Obama adminstration's feminist action agenda. In March, Education Secretary Arne Duncan announced that the OCR would open investigations in more than 30 school districts and some universities to see whether they are violating civil rights laws, including Title IX. (New York Times, 4-19-10; collegeswimming.com, 4-21-10)


 
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