Pick Your Poison

May 4, 2011

BETHESDA, Md. — Colleges and universities must pass one of three tests to show that they comply with the federal requirement that equitable athletics opportunities be available to male and female students. Yet a session here Tuesday at the National Collegiate Athletic Association’s annual Gender Equity Forum left the overpowering impression that sports officials increasingly feel that none of the options are viable, leaving many asking what, if anything, they can do to stay in compliance.

The so-called “proportionality test” is by far the best-known of the three methods for proving compliance with the participation requirement of Title IX of the Education Amendments of 1972. To pass the proportionality test, institutions must offer athletic opportunities for men and women in numbers “substantially proportionate” to their respective enrollments. Jacqueline Michaels, Title IX team leader at the Education Department’s Office for Civil Rights, told attendees something that they probably already know all too well — passing this test is “increasingly difficult” given that women make up a growing majority of the enrollment at most institutions. Passing this test is even more difficult for institutions with football teams, whose rosters can include more than 100 players.

The second test — showing a “history and continuing practice of program expansion” that responds to the athletics interests of the underrepresented sex — seems simple enough in concept. And, indeed, Michaels noted, many institutions try to pursue this method first, before finding out how difficult it actually is. While colleges may have added women's teams in recent years, Michaels said, the relative participation rates of women did not necessarily increase, because institutions are likely to have added men's teams, too. In another example, an institution could be found to fail the test because it had declined to add a women's team in which there was significant interest from athletes, and instead added a team in which there was less student interest but that was cheaper to run.

Michaels noted that less than 5 percent of institutions investigated by the government end up using this second test to show their Title IX compliance. Janet Judge, a lawyer specializing in Title IX, told Inside Higher Ed after the session that this second test is becoming harder to pass now that “we’re nearly 40 years out” from the introduction of the federal gender equity law, because showing a history of program growth is often not enough these days.

Decade-old data show that about two-thirds of colleges and universities investigated by the government used the third test to show their Title IX compliance, said Michaels, who added that she believes the strong preference for this method remains today. This test allows an institution to demonstrate that its existing athletic offerings accommodate the “interests and abilities” of the underrepresented sex. And though she admitted that government officials “don’t particularly like to say this,” Michaels said that passing this test allows institutions to have “as big a gap” between female enrollment and female athletic opportunities “as you want.”

In 2005, meeting this prong became relatively easy. The Bush administration's Education Department gave institutions permission to use an e-mailed or web-based survey alone to prove that they were “fully and effectively” meeting the athletic interests and abilities of female athletes.

Michaels said that the 2005 change was “controversial,” adding that she personally disliked it because “the survey gave schools a get-out-of-jail-free card.” In other words, institutions could infer simply from a lack of response to a survey that women on their campus thought their athletics offerings were adequate. And so, after much complaint from gender equity advocates, the policy was reversed by the Obama administration last year.

“You don’t meet [test] three just because women aren’t beating on your door, asking for a team,” said Michaels of the new requirements, before detailing for attendees the new multi-step process for passing the test. (This process is explained on the Education Department’s website. Essentially, before deciding that there is no interest among a college's athletes or among its prospective athletes in high school, an institution must prove that “no” is the answer to all of the following questions: “Is there unmet interest in a particular sport?”; “Is there sufficient ability to sustain a team in the sport?”; and “Is there a reasonable expectation of competition for the team?”)

Attendees peppered Michaels with questions specific to their institutions — some asking if their new student survey had a high enough response rate to demonstrate a lack of interest in new women’s sports, others asking if they should be forced to add a women’s team first for which they had no existing resources simply because it attracted more interest than one that would be easier and more fiscally responsible to start. One athletics official, a man who did not identify himself, bluntly asked if there were “really still” three viable tests anymore, because he said he could not name an institution that had successfully proven that it had met the third test — which he criticized as “illusory.”

Michaels and Judge responded by noting that they have seen a number of institutions pass the third test since last year’s change made it more complicated to do so. Pressured for a specific number, Michaels could not offer one, noting that she still believes a solid majority of new institutions being investigated will show Title IX compliance by passing this third test.

While they asked questions of Michaels, attendees also expressed reluctance to seek further guidance from the Education Department’s Office for Civil Rights when confused about whether their institutions are successfully passing a test to comply with Title IX. One athletics official, a woman who did not identify herself, asked Michaels if asking the federal agency for help with Title IX issues would “open the door for a proactive investigation” of her institution. Though Michaels could not entirely ease the minds of attendees, she noted that it was “unlikely” that such a request for help would result in a government investigation of an institution.

“If you want to contact our office anonymously, you can do that if that makes you more comfortable,” Michaels said. “It’s not a 'gotcha' situation.”

After the session, Michaels said she was “surprised” to hear that many institution officials are nervous about asking for guidance from the Office for Civil Rights. The office, she said, is “trying to do more outreach” to overcome such anxieties. Judge noted that she was "bothered," but not entirely surprised, by the anxiety of some of the college officials in attendance. Still, she commended Michaels's efforts to elucidate what many find a confusing process.

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