March 23, 2005

Title IX Guidance Stirs Debate

As they absorbed last week’s unannounced U.S. Department of Education letter that made it easier for colleges to prove they are meeting the athletics interests of women, college officials and critics and supporters of Title IX offered widely varying assessments of its meaning and impact.

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Supporters of women’s sports said the new guidance represented a marked shift from previous Education Department policy, especially in allowing colleges to measure female students’ interest in sports with e-mail surveys of their current students. Title IX advocates also complained that the department had issued guidance containing significant policy changes without first seeking public comment. They said they were exploring options that included a possible lawsuit against the department.

Groups that blame Title IX for cutbacks in men’s sports welcomed the new guidance, which they said would give colleges more tools to prove they comply with the federal law. “Measuring interest was always so vague, schools didn’t try to use it,” said Jim McCarthy, a spokesman for the College Sports Council, an advocacy group for “nonrevenue” men’s sports. “Up until now schools have been under this dark threat of litigation from proportionality quotas. Now there’s a common sense alternative to quotas.”

The “Dear Colleague” letter, which operates as guidance to colleges, was quietly slipped onto the Education Department’s Web site at 3 p.m. Friday, and went largely unnoticed until Monday. It (and the 170-plus page “User’s Guide and Technical Manual” that accompanied it, which Title IX experts pored over painstakingly) clarified a vague section of Title IX of the Education Amendments of 1972, which bans gender discrimination at any institution receiving federal funds.

Many college sports officials have long said that they have generally felt safe complying with Title IX only by meeting its “proportionality” test, showing that they maintain a ratio of male to female athletes that reflects the student population at that institution. They have sought added “flexibility” in meeting the third prong of the Title IXparticipation test, which allows colleges to show that they are “effectively accommodating the interests and abilities of the underrepresented sex.”

Advocates for men’s sports, including prominent members of Congress like Speaker of the House Dennis Hastert (R-Ill.), a former college wrestler, have pressed for changes that would give colleges added flexibility to comply with Title IX. The Bush administration considered instituting numerous changes proposed by a federal panel studying the issue in 2003, but backed down under considerable pressure from women’s groups. Advocates for women’s sports said they had hoped the ideas were dead, but some of them resurfaced in the guidance released Friday.

It informed colleges that they can now gauge the athletics interest of their female students by using electronic surveys, such as e-mailing a survey link to every student. Under such a setup, the department said, a student’s failure to take the survey would be treated as a sign of a lack of interest on the student’s part in the sports offerings being considered.

“To say you can send an e-mail out to your student body and any nonresponse you get means there’s no interest is absurd,” said Neena Chaudhry, senior counsel at the National Women’s Law Center. “A lot of those e-mails won’t even be opened.”

Chaudhry added that to accurately measure the athletics interests and abilities of female students, a college should survey not only the students who are already on its campus, but also female athletes who participate in high schools and recreational leagues in areas that feed into universities. “How can you measure interest without looking at high school participation where young women might have the opportunity to participate for the first time in history? The interest on campus may not reflect general interest.”

Nancy Hogshead-Makar, a former Olympic gold medal swimmer who is now a professor at Florida Coastal School of Law, said she found it “unusual” that the Education Department would put forth something “that is so different from what’s come before without public comment, and without giving advocacy organizations an opportunity to dialogue with the agency to explain what their concerns of this instrument might be.”

She said the Women’s Sports Foundation had asked her for help in exploring its options, including possible legal action.

Myles Brand, president of the National Collegiate Athletic Association, said in a prepared statement that he too was “disappointed” that the Education Department had clarified Title IX regulations “without benefit of public discussion and input.” He also said that the change would “likely stymie the growth of women’s athletics and could reverse the progress made over the last three decades.”

Advocates for men’s sports said the change could result in fairer treatment for men’s teams that have struggled to retain or gain varsity status.

“This could clear the roadblock that prevented serious men’s club teams from upgrading to varsity,” said Eric Pearson, executive director of the College Sports Council. Pearson noted that some varsity teams, like the Bucknell University men’s crew team and Yale University’s wrestling team, were downgraded to club sports to comply with Title IX, but have continued to draw many interested male athletes. Pearson thinks the added flexibility provided by the new survey tool might allow such club teams to become varsity sports again.

Dave Rinker, who coaches men’s and women’s track and cross country at James Madison, said he hoped the changes might allow him to stop limiting the number of male athletes he can keep on the roster. Right now, to comply with Title IX’s proportionality standard, the university caps at 80 the number of positions for male runners, but lets the women’s track and cross country teams have 130 slots, to balance out the large number of football players at the university. So he regularly turns away “pretty good guys who just want to walk-on and have the experience of college athletics,” he said.

If James Madison were able to use the new survey method, Rinker said, “maybe it would show that we really are providing enough spots for women, and that we don’t need to turn away men just because we can’t balance the football team.” Rinker said.

Paul Dee, athletics director at the University of Miami, said that despite the intense opinions about the new guidelines, he wasn’t sure that colleges would rush to take advantage of it. “I don’t imagine athletic directors will be quick to change their teams because of this,” Dee said. “Maybe it will have an impact in a couple years, but right now the safest thing is still to comply with proportionality.”

Doug Lederman contributed to this article.

— David Epstein

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