Failure to Enforce Title IX?

April 22, 2014

A complaint filed last week with the U.S. Department of Justice alleges that more than 120 California institutions are failing to provide sufficient athletic opportunities for women – and that the government office in charge of enforcing Title IX of the Education Amendments of 1972 isn’t doing anything about it.

The initial mass complaint against 121 public and private California colleges and universities of varying size and athletic competitiveness, filed with the U.S. Education Department Office for Civil Rights’ regional San Francisco post, alleged that the programs were failing to address gender disparities in sports participation and opportunities.

OCR uses a three-prong test to determine whether a college is in compliance with Title IX; a college is in compliance if it meets any one of the three requirements. OCR did not take issue with the claim that the California colleges failed to meet the “proportionality” and “history and continuing practice” prongs, which would show that the ratio of male to female participation equals the gender ratio of the student body, or that the programs have a history of expanding sports programs for the underrepresented sex. But OCR said the complainant’s evidence that the colleges didn’t pass the third test – which shows that even if one sex is underrepresented, their “interests and abilities” are being “fully and effectively accommodated” – was insufficient in detail. Thus, OCR said, it wasn't necessarily clear a violation was occurring.

The complainant responded with data showing that at least 10 institutions that appeared to have failed to meet parts one and two of the test had also cut women’s teams in recent years, which OCR has previously said demonstrates an unmet interest. But OCR in this case said that the evidence – news articles discussing the cuts that were published between 2004 and 2012 – were not “current” enough to adequately support the allegations of noncompliance. The complaint was dismissed.

The complaint – which now includes allegations that OCR “has deliberately refused to investigate these postsecondary institutions despite irrefutable evidence of Title IX violations by these recipient institutions, effectively aiding and abetting the continued discrimination and violation of the civil rights of women attending these colleges and universities” – is now filed at the Department of Justice. Both versions were filed by Mark Rossmiller, a parent in Vancouver, Wash. who has been critical of OCR's Title IX enforcement.

Erin Buzuvis, a law professor at Western New England University and author of the Title IX blog, has criticized OCR’s “quick dismissal of so-called mass complaints” before, she wrote on her blog.

“I understand that it may be technically infeasible for the agency to open 121 investigations simultaneously, but requiring detailed information about the presence of unmet interest puts too high a burden on the complainant,” Buzuvis wrote. Any college that is relying on prong three should be able to draw up evidence of their compliance easily enough, she said, so why not just go directly to the colleges and cut out the complainant middleman?

“The institutions that don’t reply, or that can’t produce some evidence that they’re actively engaging in efforts to comply with prong three – open an investigation against those schools,” she said. “The alternative is that you’re siding with the people who aren’t complying with prong three – or any of the prongs.”

The regional and national OCR offices declined to comment.

This is not the first college-level mass complaint, Buzuvis said in an interview, but most have been filed (and dismissed for lack of evidence of failure to meet prong three) at the high school level. Yet as these cases have emerged in the past few years, OCR has been reluctant to take them up, even while agreeing to open investigations at individual colleges in the same context.

“They’re being singled out because they’re filing them in bulk and creating a logistical infeasibility that OCR has been dealing with – in not necessarily a principled way,” Buzuvis said of the mass complaints. This one takes it even further, she said, because the complainant provided additional (and in Buzuvis’s opinion, sufficient) data at OCR’s request, but the complaint was still dropped.

Buzuvis said that at the very least, she’d have investigated the 10 campuses for which the complainant provided additional data. But given that so many campuses are included in these complaints, should the bar for opening an investigation be higher?

“I guess I don’t understand why. Because it’s just as likely that those individual schools are violating Title IX,” Buzuvis said. “The fact that other schools are in the same boat doesn’t produce a principled reason to not look at the individual schools that might be violating Title IX.”

But the DOJ complaint points to a larger problem with OCR than just its handling of mass complaints, said Nancy Hogshead-Makar, senior director of advocacy at the Women’s Sports Foundation. She compared OCR’s procedures to those of the agencies that regulate occupational health and environmental protection.

"If you see dumping going on, you shouldn’t need to be the one who gets sick in order to be able to get the EPA to respond, right?” she said. “You’re making mass complaints impossible…. You’re asking an 18- to 22-year-old to be responsible for suing their school to bring about Title IX compliance. When you think about achieving the true promise of Title IX, which is real gender equity that everybody can see and appreciate, their current strategy is ineffective.”

Hogshead-Makar recently testified in Congress that that ineffectiveness is also costing taxpayer money. An ongoing – even worsening – nationwide issue cannot really be solved through a “Whac-a-Mole” strategy that assumes individual investigations stemming from individual complaints will identify and solve all of the problems, she said.

The Women’s Sports Foundation has found that at the high school level, regardless of school type and location, girls get about three-fifths of whatever athletic opportunities boys are getting, and researchers believe that figure is roughly the same at the college level, even as women are growing as a share of college undergraduates nationally. More sports are being added for both men and women – but for the former more so than the latter.

In 2012-13, women accounted for 43 percent of participants in National Collegiate Athletic Association sports. In Division I, they received $885,380,783 in athletic aid, compared to $1,023,495,966 for men.

Some of the colleges cited in the DOJ complaint have startling gender disparities and yet cut multiple women’s sports between 2007-13. They include El Camino College, which eliminated “several” sports and a 2013 participation disparity of 37.17 percentage points, according to the complaint, and Moor Park College, which cut golf and has an 18.55 percent disparity.

(Note: The above paragraph has been changed to remove incorrect complaint information regarding Pepperdine University.)

Colleges may counter that they cut sports precisely because there was no demand, but generally speaking, when it comes to college sports, demand is always greater than supply: In high school, about half of students play sports, Hogshead-Makar said; only about 2 percent of them go on to play on college teams.

“An equestrian team in Alaska,” Buzuvis said when asked whether cutting women’s sports, which OCR has historically seen as counterproductive or in violation of Title IX, is ever in response to lack of demand. “There might be lack of interest in that.”

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