March 22, 2005

Changing the Rules

Two years ago, the Bush administration almost made significant changes in Title IX, which has led to a massive expansion of athletics programs for women in college. The changes were recommended by a special panel whose hearings and work were harshly criticized by advocates for women’s athletics.

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Last week, the Bush administration did make a big change in Title IX — this time around, without hearings or publicity. In a letter sent by the Education Department to colleges nationwide, the administration gave colleges new ways to show that they are complying with Title IX. By making it easier to use surveys to show that women’s interests in athletics are being met, the department made it easier for colleges to comply with the law while offering more sports opportunities to men than to women.

While supporters of some men’s teams praised the department, women’s groups were furious upon learning of the change. “This is simply an underhanded way to weaken Title IX and make it easy for schools that aren’t interested in providing equal opportunity for women to skirt the law,” said Marcia D. Greenberger, co-president of the National Women’s Law Center.

Title IX of the Education Amendments of 1972 bars gender discrimination by educational institutions that receive federal funds. Applying Title IX to college sports programs has been controversial for years.

Under a 1979 interpretation issued by the Education Department, colleges could demonstrate their compliance with the law by meeting any one of three tests:

• Having the percentages of male and female athletes substantially proportionate to the percentage of male and female students enrolled at the college.
• Having a history and continuing practice of expanding participation opportunities for the underrepresented sex (almost always women).
• “Fully and effectively” accommodating the interests and abilities of the underrepresented sex.

Most colleges have been nervous about the second and third approaches, since those methods are somewhat vague and open to interpretation by federal officials and the courts. So the safest path for colleges, many of them believe, is the “proportionality test,” and many of them have failed that test. With women equal to or in many cases exceeding men in undergraduate enrollments, and with football teams creating many slots for male athletes, colleges have needed to add many new teams for women.

While new teams — and new scholarships and facilities — for women have become common, so has another tactic in the last decade: eliminating men’s teams. Few colleges will eliminate a football team, but many have eliminated “nonrevenue sports,” such as wrestling, track and gymnastics. And those eliminations have led to calls to change Title IX.

Last week’s letter from the Education Department’s Office for Civil Rights provided colleges with a “model survey” that could be used to demonstrate compliance with the third test. The survey could be given to all students or just to those students in the underrepresented sex.

“Results that show insufficient interest to support an additional varsity team for the underrepresented sex will create a presumption of compliance with part three of the three-part test and the Title IX regulatory requirement to provide nondiscriminatory athletic participation opportunities,” the letter said. “The presumption of compliance can only be overcome if OCR finds direct and very persuasive evidence of unmet interest sufficient to sustain a varsity team, such as the recent elimination of a viable team for the underrepresented sex or a recent, broad-based petition from an existing club team for elevation to varsity status. Where the Model Survey shows insufficient interest to field a varsity team, OCR will not exercise its discretion to conduct a compliance review of that institution’s implementation of the three-part test.”

In addition, OCR said that colleges would be found to comply with the third test unless there is a sport or sports for which women have “(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 Education Department went on to stress that colleges “are not required to accommodate the interests and abilities of all their students or fulfill every request for the addition or elevation of particular sports, unless all three conditions are present.”

Eric Pearson, executive director of the College Sports Council, an advocacy group for “nonrevenue” men’s sports, told USA Today that the Education Department’s shift was overdue. He called the new guidelines “a viable alternative to the gender quota.” And he predicted that they would make it easier for colleges to demonstrate compliance with Title IX when larger percentages of male students than female students are athletes.

A statement from the National Women’s Law Center, however, said there were numerous problems with using surveys. “How many people open, let alone respond to, e-mail surveys?” said Greenberger.

The women’s center called the survey approach “inherently flawed” because it allows colleges to ignore other factors that might indicate a growing interest by women in various sports. For examples, surveys of coaches or studies of sports patterns in high schools may provide evidence that college women are about to get more interested in various sports.

— Scott Jaschik

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