Oyez, oyez, now here comes the arch-conservative Independent Women’s Forum and the College Sports Council demanding reform of Title IX. To promote their agenda to render Title IX useless, they preyed upon athletes whose teams have been cut for financial reasons and organized the students for a demonstration at the U.S. Department of Education in Washington demanding neither honesty nor fiscal integrity, but the reform of landmark legislation prohibiting sex discrimination. Enough already! It’s time for the truth.
Is it possible to “reform” Title IX any more than it has been since 2005? In less than two years, the Bush administration has dug deep to dislodge the cornerstones of two basic provisions of Title IX. Thanks to recently revised federal rules, grade schools can now offer separate classes and even separate schools on the basis of sex. Is it hard to imagine that different curricula -- the very result the Title IX legislation was created to prevent -- will soon follow? And in 2005, the Department of Education’s Office for Civil Rights issued a policy clarification that eviscerates Title IX’s equal access policies for athletics programs, at least in terms of OCR enforcement.
Four years ago, in an affront to the 30th anniversary of Title IX, the Bush administration created the Commission on Opportunity in Athletics based on allegations that Title IX requires proportionality (providing women’s and men’s athletics participation opportunities at rates proportionate to their enrollment rates). The task of this commission of athletics professionals was to rewrite longstanding civil rights policies that had already been upheld unanimously by the eight U.S. Circuit Courts that had ruled on the merits of these policies. CBS Television’s “60 Minutes” weighed in on the commission’s work in a November 2002 program, declaring that proportionality was the only “sure fire” way to comply with the Title IX athletics policies for participation opportunities. Too bad the truth didn’t match the entertainment goals of “60 Minutes” -- proportionality has never been the only method for compliance.
Two Government Accountability Office studies (available here and here) have confirmed what longtime OCR personnel already knew: 73 percent of the time, institutions investigated by OCR choose compliance options other than proportionality. What this means is, 73 percent of the time, institutions are complying with Title IX even though women’s rate of athletics participation is less than their rate of enrollment, and sometimes significantly so. Another GAO study undermined the deceptive slogan that Title IX “quotas” lead to the destruction of men’s programs, finding that 91 percent of institutions cited “lack of student interest” as a reason for discontinuing men’s teams.
OCR’s 2005 policy on the three-part test guaranteeing equal access to athletics participation confirms that institutions choose test three, full accommodation, 66 percent of the time, while test one, proportionality, is selected only 27 percent of the time (test three means offering every sport for the underrepresented sex, i.e., women, for which there is sufficient interest, ability, and available competition in the institution’s normal competitive region). This confirmation is tantamount to an admission that the reason cited for creating the 2002 Commission was false.
So, what to do when your campaign slogan has been exposed as falsehood, your goal is to render Title IX useless, and two-thirds of institutions choose compliance with test three? Answer: Create policy under test three that allows institution officials to decide for themselves that they comply.
OCR’s 2005 policy (clearly written by politically appointed management, not career experts) reads like a rough, first draft of someone’s wish list on how to avoid ever adding another women’s team. If an institution uses OCR’s Model Survey:
- OCR will not initiate an investigation.
- Non-response is interpreted as lack of interest, and thus, a claim of compliance -- contrary to U.S. Circuit Court rulings.
- Should survey results show sufficient interest, an institution can conduct team try-outs, and the athletic director can decide that the women trying-out lack sufficient ability, i.e., institution officials would decide for themselves that they comply with Title IX.
- Institution officials can claim uncertainty as to ability and offer a sport at the intramural or club level for several years to assess ability.
Those asserting that Title IX requires quotas are no doubt dismayed that few if any institutions seem to be using OCR’s Model Survey since its public debut on March 17, 2005. So, they have moved on to the next strategy: seize upon a sound bite opportunity and demand “reform” at a time when one institution decides to downsize for the sake of competitiveness and ease of management, while other institutions have substantial state budget cuts foisted upon them.
It would seem that the now-former speaker of the U.S. House of Representatives, Dennis Hastert -- the architect behind an 11-year campaign to dismantle the Title IX athletics policies – and “reform” advocates underestimated the intelligence of educators who have recognized that a survey used in isolation reeks of pretext discrimination.
Savvy college and university presidents know better than to walk into a federal court room and proclaim: “We ignored participation numbers in club, intramural, and high school feeder programs because when no one responded to our e-mail survey (administered during spring break or frenetic registration week, perhaps), we knew we complied with federal civil rights law.” The anti-Title IX collective probably never imagined that the NCAA leadership would recommend to its 1,025 member institutions and 260 other members that they not use the Model Survey.
For over three decades, no reform was needed for Title IX -- just education on how to apply the policies in the practical world. Now, in a mere two years, the Bush administration has created a real need for reform -- the need for recision of both of its policies that weaken the protections for students. For over three decades, Title IX has opened the door to the opportunity to explore. Mr. Hastert and the “reform” advocates can’t seem to find that door, as hard as they keep trying to slam it shut.
Valerie M. Bonnette was employed for 15 years at the Education Department's Office for Civil Rights and co-authored the agency's Title IX Athletics Investigator’s Manual. In 1994, she founded Good Sports, Inc., a consulting firm that assists institutions in complying with Title IX's athletics provisions.