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Joanna L. Grossman

Defending Equality in Athletics: The Obama Administration Repeals a Controversial Bush Era Policy


Tuesday, April 27, 2010

On April 20, 2010, Vice President Joe Biden announced that the Department of Education (DOE) would reverse a Bush-era policy that has operated as a potential loophole to strong enforcement of Title IX's guarantee of equal athletic opportunity for male and female students.

In this column, I will explain Title IX's enforcement structure in the athletic context, the 2005 policy that threatened to undermine it, and the recent reversal of that policy.

The History of Title IX and Its Regulations Relevant to College Athletics: The 1975 Standard

Title IX of the Education Amendments of 1972 is a federal statute that bans sex discrimination in educational programs receiving federal financial assistance. Because of the broad way in which the federal financing requirement is construed, most colleges and universities, as well as many high schools, are covered by Title IX.

Title IX has been used to challenge gender inequity in a variety of contexts: sexual harassment; pregnancy; school admissions, testing, and scholarships; and, most controversially, school athletics. It is in this last context that Title IX has made the biggest mark: Title IX has been incredibly important in opening the playing fields to women and girls. This very success, however, has made the statute a target of criticism, as I will discuss shortly.

But first, to understand the new Obama Administration DOE policy, we must consider the way in which Title IX has been implemented since the law was first enacted. In 1975, the Department of Health, Education, and Welfare (the predecessor to today's DOE) issued regulations to implement Title IX. The regulations required institutions to provide "equal athletic opportunity for members of both sexes."

This general standard was supplemented by ten factors to be considered in determining whether equal opportunity was, in fact, being provided. The first of these factors – and the one most frequently at issue in litigation – asks "whether the selection of sports and levels of competition effectively accommodate the interests and abilities of both sexes."

More on Title IX and Its Regulations: The 1979 Policy Interpretation, and the 1996 Clarification

In a 1979 Policy Interpretation, HEW broke down this factor further, into a three-part test. Under that test, an institution can show effective accommodation by proving one of three things: First, it can show that it provides athletic opportunities to men and women that are substantially proportionate to their overall enrollment. Second, it can show that it is engaged in a continuing practice of program expansion with respect to the underrepresented sex (which is almost always women). Third, it can show that it has fully and effectively accommodated the interests and abilities of the members of the underrepresented sex. For the remainder of the column, I'll call these alternatives the "three-pronged test."

In 1996, the Department of Education sent a "clarification" of the Policy Interpretation to thousands of interested parties. The "Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Test (1996)" explained, among other things, that although proportionality alone can provides a "safe harbor" for institutions that are able to demonstrate it, institutions are also free to comply with the other prongs of the test instead.

The new clarification also said that institutions were authorized – though not required – to eliminate teams, or cap team size, as a way of achieving gender proportionality. (For example, eliminating the men's lacrosse team could be a way to address the fact that there was no women's lacrosse team.)

Finally, the clarification said that participation opportunities should be measured based on actual athletes, rather than on "slots" – a healthy dose of realism that meant schools had to focus on women athletes, not theoretical possibilities that there could be women athletes.

Title IX Has Been a Clear Success In the Athletics Context, But Issues Remained that the Obama Administration Is Now Addressing

The success of Title IX in the athletics context is unmistakable. Every available statistic bears this out. At the college level, there has been at least a five-fold increase in women's athletic participation since 1972. The increase at the high school level has been even more dramatic. (The number of male athletes has risen as well, though not nearly as dramatically.)

Despite these huge increases in women's athletic participation, however, a high percentage of the high schools and colleges that are covered by Title IX run athletic programs that are out of compliance with the statute and/or its regulations. Title IX enforcement, and the administrative regulations that make enforcement and compliance more or less feasible, thus remain important.

In the popular media, the three-part test of the Title IX regulations has been reduced to a single idea–a requirement of proportionality. Critics also complain that the only way to achieve proportionality is by cutting men's "minor" sports–like wrestling, swimming, and gymnastics–in order to bring the overall opportunities for men down to the level of women's overall opportunities.

However, cutting is not the only way to achieve proportionality, and proportionality is not the only way to achieve compliance. The policy that was reversed recently by the Obama Administration involves the third prong of the three-part test: a school's showing that it has "fully and effectively accommodated the interests and abilities of the members of the underrepresented sex". (Only one prong of the test need be met for full compliance.) But before moving on to discuss the new Obama Administration change, it's necessary to give some background about developments in this area that occurred during the George W. Bush Administration.

A Leading Critic of Title IX: The Bush Administration

At various points in the last decade, critics have called for amendments of Title IX and its regulations that would make the statute's demand for gender equity – particularly in the realm of college athletics – less strict. Among the vocal critics of the statute was George W. Bush's administration, which revealed its opposition to Title IX in many different ways.

To begin, the Bush Administration offered a lackluster defense of the statute in a reverse-discrimination lawsuit brought by men's wrestling coaches – claiming, unsuccessfully, that Title IX was unfairly taking away athletic opportunities for men and boys. Even more damaging, however, were the recommendations of the Commission on Opportunity in Athletics, a group that was convened by Bush's DOE Secretary Rod Paige to explore whether Title IX's protections for gender equity should be rolled back.

In a 2002 report, "Open to All: Title IX at Thirty," the Commission recommended revisions to Title IX regulations that would have substantially hindered its usefulness in combating sex discrimination in athletics. Two members of the commission, both women with Olympic Gold medals on their belts, issued a minority report in which they critiqued both the process used and the conclusions reached by the Commission.

The Commission's recommendations ranged from adopting a "reasonable variance" standard allowing departures from proportionality, to adopting a policy against team-cutting as a means of reaching compliance, to stating that cutting teams to bring about compliance is a "disfavored practice," to counting unfilled "slots" when measuring women's participation. The Commission also extended an open invitation to the DOE to vary, amend, or eliminate the three-prong test for compliance.

The recommendations of the Commission were troubling – a list of rollbacks for the most successful civil rights statute in history. Fortunately, however, the DOE, ultimately, declined to urge or adopt most of them. In July, 2003, the Director of the Office for Civil Rights (OCR), which today is charged with Title IX interpretation and enforcement, issued a letter entitled "Further Clarification of Intercollegiate Athletics Policy Guidance Regarding Title IX Compliance" in which it rejected the most damaging proposals, including one urging the greater use of interest surveys and youth participation data to determine the proper allocation of playing opportunities between the sexes. The director made clear that OCR would continue to "aggressively enforce" Title IX's standards regarding athletics, and sanction schools that are in violation. The letter effectuated only very subtle changes to Title IX in the athletics context.

Two years later, however, OCR issued the "Additional Clarification of Intercollegiate Athletics Policy: Three Part Test – Part Three (2005)." In this 2005 Clarification, OCR highlighted a new analysis of the third prong of the three-part test. In this document, the agency stated that the third prong of the test could be satisfied solely through data collected via an e-mail survey of students.

Reliance on student interest surveys is troubling because it compounds past discrimination against women as athletes. Schools create interest by funding teams, hiring top-notch coaches, providing scholarships, and promoting their sports programs. Cold surveys are much more likely to reveal stereotypes resulting from past discrimination than true interest levels. Moreover, student athletes are unlikely to apply – and thus be in the surveyed population – to a school that does not offer the sport in which they specialize. Even worse, the policy expressly permitted schools to permit all non-responses as indicators of non-interest, even though there are many reasons a survey recipient may not respond. (A comprehensive analysis of the three-part test, including reasons to resist reliance on student interest surveys, can be found in Deborah Brake, Getting in the Game: Title IX and the Women's Sports Revolution (NYU forthcoming 2010).)

The force of this change was dampened significantly by the fact that the NCAA adopted a formal resolution opposing it on grounds that DOE had adopted it without giving interested parties the opportunity to comment on it before adoption and because it was inconsistent with both the prior clarification and "principles of equity under Title IX". Specifically, the NCAA pointed out that the use of surveys alone "conflicts with a key purpose of Title IX – to encourage women's interest in sports and eliminate stereotypes that discourage them from participating" and "shifts the burden to female students to show that they are entitled to equal opportunity".

The Recent Obama Administration Policy Reversal: No More Exclusive Reliance on Student Interest Surveys

OCR's most recently issued Clarification – entitled "Intercollegiate Athletics Policy Clarification: The Three-Part Test – Part Three (2010)" – officially withdrew the 2005 Additional Clarification and the technical instructions that came with it for administering student surveys. It thus reverted to the standards laid out in the 1979 Policy Interpretation and the 1996 Clarification.

By way of explanation, OCR stated that the 2005 Clarification was inconsistent with the "methods of assessment" that had been set forth in the 1979 Policy Interpretation and the 1996 Clarification. The 2010 Clarification then lays out standards for determining whether an institution has "fully and effectively accommodated" the needs of the underrepresented sex (in most cases, women).

Based on the earlier policy guidance and clarification, OCR asks three questions when assessing the third prong of the three-part test: (1) Is there unmet interest in a particular sport?; (2) Is there sufficient ability to sustain a team in the sport?; (3) Is there a reasonable expectation of competition for the team? If the answer to all of these questions is "yes," then OCR will find that the institution has not shown its compliance with Title IX via the third prong.

The 2010 Clarification states that OCR will continue to use these three questions to assess compliance with this prong. But, more importantly, it makes clear that it will look at a "broad range of indicators" to answer each of these three questions rather than just data from a single survey.

For example, in assessing whether there is "unmet interest" in a particular sport, OCR will look at requests by students or admittees that a sport be added; requests for elevation of a sport from club to intercollegiate status; levels of participation in club or intramural sports; interviews with students, coaches, administrators, and others; results of surveys; participation in high school sports by admitted students; and participation rates in high school, amateur, and community leagues in the area from which the school draws its students.

With respect to each of the three questions, OCR uses this Clarification to broaden the inquiry and to ensure that information gathered about the athletic interests and skills of its student population is current and accurate. Surveys may be used as "one tool" in gathering this information, but OCR will no longer "accept an institution's reliance on a survey alone, regardless of the response rate, to determine whether it is fully and effectively accommodating the interests and abilities of its underrepresented students." And surveys that are used will themselves be assessed for content, implementation and response rates.

The Bottom Line: In this Area, the Obama Administration Is Showing Strong Support for Athletic Equality and thus for Civil Rights

This reversal of Title IX policy, while narrow, is an important sign of the Obama Administration's support for civil rights. It follows an announcement by the current Secretary of Education, Arne Duncan, that the agency will open investigations in 32 school districts and will look closely to see whether educational entities at all levels are complying with civil rights laws such as Title IX.

Overall, Title IX's future looks bright, but areas for progress yet remain. Women still receive disproportionately fewer playing opportunities, fewer scholarships, coaches who are paid less, and lower budgets, despite more than a decade of active Title IX enforcement and litigation. This policy reversal is a hopeful sign that we can expect further progress – instead of retrenchment – in the crucial area of ensuring that female and male athletes are given equal opportunity.

Joanna Grossman, a FindLaw columnist, is a professor of law and John DeWitt Gregory Research Scholar at Hofstra University. She is the coeditor of Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press 2009), an interdisciplinary collection that explores the gaps between formal commitments to gender equality and the reality of women's lives. Her columns on family law, trusts and estates, and discrimination, including sex discrimination and sexual harassment, may be found in the archive of her columns on this site.

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