In its latest forum on Title IX of the Education Amendments of 1972, a federal civil rights panel divided its time equally between broad philosophical questions -- Are women as interested in playing college sports as men? Do they have the chance? -- and more bureaucratic matters: How can an institution administer an athletics survey so that it reaches the largest sample?
Such is the nature of discussions of the federal anti-discrimination legislation that has wide-ranging national implications and also forces institutions to reconsider the details of how they run their athletics programs.
The main subject of Friday’s U.S. Commission on Civil Rights hearing was a model survey, released in 2005 by the Department of Education’s Office for Civil Rights, that illustrates how colleges can show they are accommodating the “interest and abilities” of current and potential female athletes. The survey is seen as controversial because it is an easier way for colleges to show compliance with "prong three,” as it is called, of Title IX’s participation requirement and thus not have a ratio of female to male athletes similar to that of its student body.
Critics say the survey allows colleges to skirt their responsibilities to underrepresented athletes and that it doesn't accurately measure the student body. The 2005 letter also includes a clarification that some contend shifts more of the burden on the athletes. It states that colleges are in compliance with prong three -- a popular choice for many institutions that are majority female and that have a large-roster football team -- unless there is a sport or sports for which women can show: "(1) unmet interest sufficient to sustain a varsity team in the sport(s); (2) sufficient ability to sustain an intercollegiate team in the sport(s); and (3) reasonable expectation of intercollegiate competition for a team in the sport(s) within the school’s normal competitive region.” The department added that colleges are not required to accommodate the interests and abilities of all their students or fulfill every request for the addition or elevation to varsity status of particular sports unless all three conditions are present.
Ever since its release more than two years ago, the "clarification" has been lambasted by women's sports advocates. On Thursday, before the commission had its say, Myles Brand, president of the NCAA, and members of the National Coalition for Women and Girls in Education held a press conference calling for a return to a 1996 department clarification that said, among other things, that surveying current athletes is but one way a college should measure interest in women's sports.
Jocelyn Samuels, vice president for education and employment at the National Women's Law Center, said during Friday's hearing that she wants the department to rescind its latest clarification. The OCR's directives allow colleges to say they are satisfying demand, when actually they are just maintaining the status quo, which still reflects past biases against female athletes, she said.
"Every time an opportunity is opened, female athletes show up in droves," Samuels said, adding later that "to say that the burden is on women to express interest is wrong."
But Jennifer C. Braceras, a commissioner, lawyer and freelance writer, argued that colleges are already accommodating the interests of female athletes and are continuing to work toward providing more options. She said the fact that fewer than 50 percent of college athletes are women, even though the majority of students are female, is most likely a reflection of women's lesser interest compared with men's.
"Why is that number a cause for concern?" she asked Samuels in one of many heated exchanges between the two. "Isn't it just a matter of time [before it reaches equilibrium]? Some girls just don't want to play sports."
"Men obsessively watch sports on TV, and women do to a lesser degree," added Abigail Thernstrom, vice chair of the commission and senior fellow at the Manhattan Institute in New York.
"Title IX prohibits stereotyping like that," Samuels shot back.
Samuels spent much of the day on the defensive, answering questions from several commissioners who see the department's 2005 action as providing long-overdue guidance to colleges that are struggling to comply with Title IX.
“My sense is that you’d be satisfied with very little other than close to full proportionality,” Braceras told Samuels. "It seems that you see prongs two and three as just transitional and that prong one is the touchstone, the safe harbor." Prong I refers to proportionality and prong two says colleges can comply by having a "history and continuing practice of expanding participation opportunities for the underrepresented sex" (nearly always women).
Judith Sweet, an NCAA independent contractor and consultant, said she sees prong two as "what Title IX is all about," because it demonstrates that progress is being made.
“I’m equally satisfied when a university meets prong three tests so long as they are applied correctly,” Samuels said, adding that she supports the 1996 department clarification. Samuels said surveys should also take into account high school interest, community interest and other factors to get the full picture.
Daniel A. Cohen, a lawyer who has studied the implications of the 2005 clarification, reminded Samuels and the commission that the intention of the federal law is to accommodate current students, not predict or measure future interest. But Michael Yaki, a commissioner who often holds the contrarian viewpoint on the panel, came to Samuels' defense multiple times, saying that colleges still need to be proactive in opening up opportunities for female athletes. Title IX has worked thus far in increasing young women's interest in sports, he said. That's impossible to prove, responded Thernstrom, who said that it's likely a confluence of societal factors.
Braceras continued her cross-examination of Samuels.
“Do you honestly think universities are trying to weaken Title IX?” Braceras asked.
“Universities want to make it easier to comply with Title IX so they can continue to run football and men’s basketball programs the way they have for years,” said Samuels, touching off a debate on why some colleges choose to cut "nonrevenue" men's teams.
“That’s an extreme accusation to make. When you say a university is out there wishing to undermine the civil rights of women, those are fighting words," Braceras said.
Throughout the hearing, speakers made the point that no college has reported using the model survey to show compliance with Title IX. The NCAA and other groups have urged strongly against it as a sole means of data collection. David Black, deputy assistant secretary for enforcement with OCR, said his office does not require a college to say how it is going to comply with the federal law. He defended the survey as measuring a broad range of factors.
Commissioners expressed frustration that there are no data on who is using the test and among those that are (if any), what the results have shown. Both Samuels and Sweet said the survey can be administered so that only a minority of students are likely to be sampled. It can be given out through e-mail, and many students don't respond to such messages, they argued. Non-answers are counted as "no interest" on the survey.
Black said many colleges have policies requiring students to read and respond to official e-mails. Even so, OCR recommends that the surveys are given out as a part of a mandatory process, such as class registration. Cohen, the lawyer who has studied Title IX, said "e-mail" is unfairly used as a pejorative term by critics. OCR, he said, would make sure that colleges are administering the survey in a way that captures the largest possible audience on campus.
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