Reversing Bush on Title IX (Update)

WASHINGTON -- Undoing another legacy of its predecessor, the Obama administration today plans to withdraw a 2005 clarification of a federal anti-discrimination law that critics saw as weakening enforcement of gender equity in college athletics.

April 20, 2010

WASHINGTON -- Undoing another legacy of its predecessor, the Obama administration today plans to withdraw a 2005 clarification of a federal anti-discrimination law that critics saw as weakening enforcement of gender equity in college athletics.

Vice President Biden, joined by Education Secretary Arne Duncan and other administration officials, will announce at an event at George Washington University today that they have issued a “Dear Colleague” letter overturning the 2005 interpretation of Title IX of the Education Amendments of 1972. (Update: The letter is now available here, and a Q&A about the new policy is available here.) The 2005 policy allowed colleges and schools to use an e-mailed or Web-based survey alone to prove that they are “fully and effectively” meeting the athletics “interests and abilities” of female athletes.

Title IX, which bars gender discrimination by educational institutions that receive federal funds, gives colleges and schools three options for proving that they are providing equitable athletics opportunities to both sexes: they can have percentages of male and female athletes that are substantially proportionate to the percentage of enrolled male and female students; have a history and continuing practice of expanding participation opportunities for the underrepresented sex (almost always women); or “fully and effectively" accommodate the interests and abilities of the underrepresented sex.

In promulgating the 2005 policy, Education Department officials and supporters of the change argued that the second and third prongs of the test were overly vague and nearly impossible to prove to the federal government’s satisfaction, making the first prong, known as “proportionality,” essentially the de facto requirement. The swelling female enrollments at many colleges have made that standard increasingly difficult to meet.

Advocates for women’s sports have argued from the day the 2005 policy was issued that the change would make it too easy for institutions to use unreliable data to comply with the law, especially given the "model survey" that the Education Department’s Office for Civil Rights issued. Critics have been pressing the Obama administration to overturn the policy ever since.

In doing so this week, administration officials said they had concluded that the approach of leaning entirely on one survey was flawed. “The letter responds to concerns and widespread objections that the 2005 policy and the prototype survey issued by the Department were inappropriate for assessing compliance with Title IX,” Duncan said in a news release.

Administration officials said their interpretation would once again require the Office for Civil Rights to evaluate “multiple indicators” -- including surveys -- to gauge the athletic interests and abilities of the underrepresented sex at educational institutions. “The new Dear Colleague letter clarifies that OCR does not consider survey results alone to be sufficient evidence of a lack of student interest or ability in sports,” the Education Department news release said.

Seeking to preempt concerns that eliminating the survey option would straitjacket colleges and schools, he added: “This Dear Colleague letter continues to give educational institutions a great deal of flexibility and control over their athletic programs, consistent with the nondiscrimination requirements of Title IX.”

Advocates for men’s sports weren’t buying it, arguing that institutions and students alike would lose out. “Surveys can give the students a voice in the decision making process of sports sponsorship,” Eric Pearson, chairman of the College Sports Council, said in a prepared statement. “It appears that the Obama administration has yielded to pressure from the NCAA and gender quota advocates in weakening the value of student interest surveys for Title IX compliance.

“This is a step backwards for everyone that cares about fairness in athletics,” he added. “Students, women and men alike, are more than capable of expressing their interests, and especially when it comes to extracurricular activities on campus their voices should be heard.”

Pearson noted that the U.S. Commission on Civil Rights had last week endorsed the electronic survey as “the best method available” to show that an institution is meeting the needs of the underrepresented gender in its intercollegiate athletics offerings.

Nancy Hogshead-Makar, professor of law at Florida Coastal School of Law and, as of Monday, senior director of advocacy for the Women’s Sports Foundation, said she was heartened not only by the administration’s withdrawal of the 2005 policy but also what the move signaled about a new approach to enforcing Title IX at the federal level.

“There was not a lot of enforcement coming from OCR, and consequently schools weren’t taking the issue as seriously,” she said.

That will change going forward, Biden and the head of OCR, Russlynn Ali, are vowing.

“Making Title IX as strong as possible is a no-brainer,” said Biden. “What we’re doing here will better ensure equal opportunity in athletics, and allowing women to realize their potential -- so this nation can realize its potential.”


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