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Back to September Ed Reporter

Education Reporter
NUMBER 308 THE NEWSPAPER OF EDUCATION RIGHTS SEPTEMBER 2011

Feminists Target High School Sports
The Obama administration and its feminist allies are on a crusade to subject high school athletic programs to the same gender quotas that colleges face. So far, hundreds of schools in Idaho, Oregon and Washington State have been named in Title IX complaints submitted to the Education Department's Office for Civil Rights (OCR) this year. Enacted in 1972, Title IX prohibits gender-based discrimination in any educational programs that receive federal funding.

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The administration signaled its intent to enforce rigid gender quotas in April of 2010 when the OCR rejected a recommendation from the independent U.S. Commission on Civil Rights regarding college athletic programs. The USCCR found that "the best method available" to satisfy the intent of Title IX is responding to student interests as indicated by surveys, instead of using mechanical calculations to force male/female sports participation rates to match student enrollment figures. Obama's Office for Civil Rights rejected the USCCR report and furthermore sent colleges a clear message that they must not follow the advice of the USCCR. The administration sent a "Dear Colleague" letter to colleges nationwide withdrawing the "model survey" option as sufficient evidence of compliance with Title IX. The effectual message was that colleges must comply with gender-based quotas or expect trouble from the OCR.

No doubt emboldened by these events, the feminist National Women's Law Center (NWLC) launched a campaign to push for gender-based quotas where they have never been enforced before — at the high school level. In November 2010, the NWLC filed administrative complaints against one school district in each of the OCR's 12 regions across the country as a sign of their future intentions.

"These 12 school districts are the tip of the iceberg," said NWLC Co-President Marcia Greenberger. "Nationwide, only 41% of all high school athletes are girls, even though they make up half of the population. That means schools are giving girls 1.3 million fewer opportunities than boys to play sports nationwide."

In the feminist mindset, it is unthinkable that girls could be even slightly less interested in competitive sports than testosterone-fueled boys, despite participation data and surveys conducted by various sources finding that roughly 60% of students indicating an interest in sports are male. Indeed, Jocelyn Samuels, Vice President for Education and Employment at the NWLC, testified during the USCCR hearings that to believe that males and females could have different interest levels in sports was "a stereotype" and even "impermissible" under the law.

But crying "stereotype" doesn't change the reality that males and females aren't exactly alike in their pursuits and priorities. Rick Serns is the Title IX officer and director of employment services for one of the Washington State schools included in the complaint. He said that all four schools in the Federal Way District have offered ten boys' sports and ten girls-only sports for a number of years. "Boys participate more in athletics, even though we offer the same amount of sports. The complaint doesn't allege that there is any failure in the facilities, teams, fields or practice space," he said. "We just don't have the participation levels up as high [for girls] as some people would like."

Charges against 12 school districts in 2010 have now mushroomed to charges against hundreds of school districts. There are so many charges against districts in Washington State, Idaho and Oregon that the OCR is either already conducting or considering conducting statewide investigations.

Since Title IX (unlike other sex discrimination policies) does not require an injured party to come forward, that leaves interest groups like the NWLC and lawyers seeking financial gain free to sue schools even if no students complain. Department of Education officials have refused to say who filed the recent accusations against Washington State, Idaho and Oregon, but the 600-page complaints suggest the organized campaigns of special interest groups rather than individual students or student groups who have a complaint against their schools.

Efforts to force gender quotas in high school athletic programs have not gone entirely unchallenged, however. In July, the Pacific Legal Foundation (PLF) filed a lawsuit against the Department of Education on behalf of the recently renamed American Sports Council (ASC) arguing that Title IX is not a quota mandate for high school sports programs. As part of the rollout of its lawsuit, the ASC also announced its name change from College Sports Council to American Sports Council. "Title IX enforcement's next battlefield will be American high schools, and we need to change our name to reflect a broader mandate," said Eric Pearson, Chairman of the ASC.

The ASC believes that some school districts have already been intimidated into curbing certain boys' sports to comply with the gender-based quota interpretation of the law. Colorado parent Dwight Johnson said he has been trying to get boys' volleyball recognized as a sanctioned high school sport, but the Colorado High School Activities Association cited Title IX as a deterrent. Johnson also said that while 30 Colorado schools recognize ice hockey as a sanctioned sport, roughly 20 more only recognize it at the club level because they fear falling out of compliance with Title IX if they add more boys to their sports rosters.

The legal arguments of the lawsuit center around the so-called "three-part test" devised by federal regulators in 1979. The OCR ruling ostensibly offers schools three options for proving compliance with Title IX:

  1. A quota whereby female sports participation is proportionate to female enrollment
  2. Progress towards reaching such a quota
  3. Fully accommodating the underrepresented gender's interest in athletics

Unfortunately, the effect of the three-part test has been to encourage quotas at the college level because that standard is the easiest to demonstrate and is therefore considered a "safe harbor" to avoid lawsuits. Pacific Legal Foundation attorney Joshua Thompson argues that the three-part test has no relevance to high schools, however.

Thompson noted that the title of the 1979 policy includes the word "intercollegiate," and not "interscholastic" athletics. "No federal regulation or interpretation has ever said that high schools must abide by the three-part test and the sex-based quota system it fosters," he said.

But Russlynn Ali, the assistant secretary for civil rights in the Department of Education, disagreed. "The law is really clear, and has been since 1979, and it has been applied uniformly to K-12 and colleges and universities across Democratic and Republican administrations," she told the New York Times.

Attorney Thompson called Ali's assertion that the strict requirements of the three-part test have always applied to high schools "astounding." Furthermore, he said, such a position violates the Equal Protection Clause of the Constitution and would certainly invite many lawsuits against the Department.

In the meantime, the latest High School Athletics Participation Survey found that the number of high school students playing sports reached an all-time high this past year. The report also notes that the during the past 20 years, the increase in girls participation in sports has more than doubled that of boys — 63% to 31%. In Oklahoma, there were actually more girls than boys participating in sports last year — 44,112 versus 42,694.

The good news about increased participation of school-age girls in sports is unlikely to deter feminist activists though. They've made it clear time and time again that their real goal is not equal opportunities for women, but equal outcomes, regardless of whether most women desire that equal outcome or not. (blogs.edweek.org, 8-23-11 and 7-21-11; The New York Times, 2-8-11; federalwaymirror.com, 4-19-11)


 
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