• July 24, 2014

Education Department Nixes Bush-Era Policy on Title IX Compliance

The U.S. Department of Education has withdrawn a controversial 2005 policy that allows colleges to comply with a key federal gender-equity law by using electronic surveys to gauge female students' interest in playing sports.

The reversal marks a victory for advocates of gender equity in sports who viewed the policy as a damaging loophole to Title IX of the Education Amendments of 1972, which prohibits sex discrimination at institutions that receive federal funds.

The change in policy, set forth in a "Dear Colleague" letter from the department's Office for Civil Rights, will be formally announced on Tuesday by Vice President Joseph R. Biden Jr., Education Secretary Arne Duncan, and other top officials.

In the letter, the civil-rights office states that survey results alone are not sufficient evidence of a lack of student interest in sports. It also provides recommendations for ways in which colleges can use surveys as one of many indicators to assess the athletic interests of students, particularly women.

"Making Title IX as strong as possible is a no-brainer," said Mr. Biden in a written statement. He added that the change in policy would "better ensure equal opportunity in athletics" and allow women to "realize their potential."

Mr. Duncan said the change in policy would give colleges flexibility and control over their athletics programs. In addition, he said in the written statement, "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."

Interest-Survey Alternative

For decades, the department has used a three-part test to determine whether colleges are in compliance with Title IX. Under that test, a college must meet one of three requirements: have the proportion of female athletes be the same as the proportion of female students; have a history and continued practice of expanding athletics programs for women; or demonstrate that the women's athletic program fully and effectively accommodates the interest of current and prospective female students.

The 2005 policy dealt with the third element of this test. For decades, previous interpretations had allowed for multiple indicators to gauge students'—particularly female students'—interest in certain sports.

The 2005 clarification changed that, shifting the burden of proof from the colleges to the students: It permitted colleges to rely solely on the results of periodic surveys sent to their undergraduates to assess interest.

Supporters of the policy said it would be a fair way of achieving gender equity: If women wanted to play a certain sport, they could say as much in a survey. Opponents said it was an inconsistent mechanism that would allow colleges to manipulate survey responses and avoid offering women's teams. In the long run, the rift made little difference, as the policy failed to gain traction on most campuses and never earned the endorsement of the National Collegiate Athletic Association.

Judith M. Sweet, who testified in 2007 before the U.S. Commission on Civil Rights against the survey policy, called Tuesday's announcement "long overdue, wonderful news," and "an important step in maintaining the original intent of Title IX." (The commission, an independent federal advisory panel, released a report this month based on the 2007 hearings; the report lauded the survey option as the best way for gauging female students' interest in sports.)

The survey mechanism, said Ms. Sweet, a consultant and a former president of the NCAA, was a "quick fix" that deviated from exploring female students' interest in sports in a meaningful way. "We've been optimistic from the beginning that it would be overturned," she said, "but it's been a long haul."

'A Symbolic Step'

Title IX makes no explicit mention of athletics, but the law is best known for its application to high-school and college sports: Since the 1970s, the rosters of the nation's college sports teams have swelled with women, growing from about 16,000 not long before the law was passed to more than 180,000 this year.

Despite the growth, the law has had a tumultuous past, marked by emotional political debates, seesawing court decisions, and inconsistent government oversight.

The 2005 policy was a particularly sharp thorn in the side of gender-equity advocates, who said it weakened a law already poorly enforced by education officials under President George W. Bush's administration.

This week, those advocates said Mr. Duncan's announcement has returned Title IX to its proper place as the arbiter of equal opportunity in college sports.

"This is an important step in maintaining the original intent of Title IX," said Ms. Sweet, who was a longtime athletic director at the University of California at San Diego. "We've waited a long time for somebody to step up and acknowledge that it was an inappropriate action to take in 2005, and that we need to make sure that institutions are clear on utilizing various methods to assess interest" in sports. But Eric Pearson, chairman of the College Sports Council, an advocacy group for men's sports, said the reversal of the 2005 policy was "disappointing" and a blow to giving students more of a voice in colleges' decisions about which sports to sponsor.

"We see this as a setback," he said in an interview. "We were confident that schools could actually use the ... test and be confident that it could hold up in court."

Education officials have already stated that they will be more proactive in enforcing Title IX as it applies to athletics. Today's announcement gave advocates in the Title IX world their first glimpse of what may lie ahead.

Jeffrey H. Orleans, a lawyer and former executive director of the Council of Ivy Group Presidents who helped to write the regulations for Title IX in the 1970s, said the withdrawal of the policy was "a symbolic step" by the Obama administration to signal that it is serious about Title IX.

Colleges would be better off focusing on proportionality from the outset, he added, rather than relying on inconsistent surveys.

"If you have a survey and it tells you you're OK for a year, next year's survey may not tell you that," he said. "So why not get to work and do the right thing?"

Comments

1. gharbisonne - April 20, 2010 at 07:37 am

What a nicely balanced article. One sentence from a proponent of the 2005 policy, and 2000 words from those opposed to it.

Got an opinion on this yourself, Ms. Sander?

2. supertatie - April 20, 2010 at 07:54 am

What's sad about the way Title IX had been enforced (and, apparently, will be enforced again) is that it has been directly responsible for the elimination of innumerable mens' sports, in which there was already high interest and participation, in favor of the creation of certain women's sports, in which there was far less. Schools tremble at the prospect of litigation, and the easiest way to "comply" is to have the same number of men's and women's sports. That always means eliminating men's teams in the sports that don't generate as much revenue (or any at all), like wrestling, lacrosse, or diving.

I am a huge believer in women participating in sports and sporting events, for all kinds of reasons - improved health and self-esteem not least of them. But you cannot escape the reality that more men in general want to play team sports than women, and schools which cater to what their students want will almost always have more men's sports than women's. So what?

That perfectly uninteresting (for most of us) state of affairs is unacceptable to the self-appointed elites who have decided what all of us must think, believe, and take part in.

If more girls and women want to participate in sports, they can always start a club sport where one did not exist before. Students have always had the motivation and the wherewithal to create new organizations and events, and to generate the support for them, if needed.

This isn't education policy. It's social engineering. And it stinks.

3. dashwood - April 20, 2010 at 08:05 am

I've got to agree with gharbisonne that this story lacks balance. This is an unbalanced story from a publication that is usually very good at covering stories in a balanced way. I know that you can do better than this.

4. jffoster - April 20, 2010 at 09:01 am

Erziehungsführer spricht -- wir folgen!

Isn't this about SEX and not "Gender"?

Why should there even be a FEDERAL Department of Education?

And if fewer girls want to play sports...?

Or is this moving toward an athletics "co-curricular" requirement as we dumb the colleges into high schools down?

5. hawkie - April 20, 2010 at 10:04 am

Proportionality is a mindless and baseless test. Colleges have no control or flexibility over their programs when such a test is given anything beyond minimal weight. The survey mechanism may have been flawed, but what is left is worse. We are back to giving unwarranted weight to proportionality.

6. dowinter - April 20, 2010 at 10:32 am

Will this policy impact collegiate life outside of athletics? Must we find "proportional" interest in music? Dance? Education? I don't understand the "victory" attitude in the article. As a female and former athlete, I never wanted to play football, but I'm glad the guys did - it's one of my favorite sports.

7. tgroleau - April 20, 2010 at 10:50 am

A few comments:

1) As a statistics teacher I find it troubling that surveys are so quickly dismissed as a valid tool simply because some people don't like the outcome. Of course statistical tools can be manipulated but you should go after those who manipulate them rather than exclude the tool.

2) With 7 years of co-ed youth soccer coaching experience, I've repeatedly seen male interest exceed female interest all the way down to 4-10 year olds. This is consistent with every study I've ever seen of athletic interest by gender. Some of us may not like that, but it's still true.

3) Are you ready for a world where admissions will pass up a female who wants to major in math and has a 30 ACT just because she's not interested in sports? If the only acceptable outcome is going to be proportionality, then admissions offices will have to go out of their way to focus on athletically-minded females while ignoring athletically minded males and academic interests will become secondary.

8. tannwalton - April 20, 2010 at 11:39 am

gharbisonne & tgroleau -- I'm curious to your evidence to support your opinions that 'male interest exceeds female interest' in sport. As a stats teacher, you should know better than your casual personal survey of 'interest' tgroleau! In your 'observation' did you control for how much mediation of gender specific sport that your participants watched and consumed (i.e. how much sport media of male and female athleticism are your participants inundated with?)? Did you control for cultural expectation of sport participation for boys and girls? Did you control for available opportunities? (i.e. the difference in participation levels for boys and girls can be explained by almost completely by one variable: boys have an opportunity to play organized football and girls do not! yet rugby is one of the fastest growing participant sports for girls. these seems to indicate an interest in contact sport.) Without controlling for all the cultural variables that influence boys and girls participation in sport your opinions don't carry much weight. Historically we have seen that girls and woman have jumped at every opportunity to participate in sport that they have received. if there were some biological difference in sport interest between boys and girls we would not even be having this conversation. Girls participation levels would still be at less than 5% of scholastic athletes as it was in 1971. Social engineering is trying to keep things the status quo because it fits with your gender bias.

9. badger74 - April 20, 2010 at 11:50 am

People who try to deny basic gender differences in many areas are trying to create a world that does not exist in nature.

10. tannwalton - April 20, 2010 at 11:53 am

badger74 there's nothing 'natural' about organized sport... people who try to compare it to 'nature' refuse to see the complexity of human culture.

11. marge - April 20, 2010 at 12:00 pm

Oh suoertatie,
You are sorely misinformed. Title IX does not eliminate the non revenue sports. It is the unechecked spending by the athletic directors who allocate hundreds of thousands of dollars to their football and basketball programs. Believing that somehow a cinderella team will grant them the miracle which in turn will produce money and noteriety for their school, and longevity for him.
When these AD'S have to divy up the rest of the funds to the other sports, of course the till is near empty. They are happy to blame Title IX for the problem. Obviously, people like you believe them.
In the future tell your daughter that she should suck it up and create her own team, find her own practice facility, ask a coach to volunteer, make her own uniform, and ask some people to officiate for free while she pays the same or more for her education because she is born without a certain apendage. Tell your sister or your wife that she cannot possibly be as worthy as her male counterpart for compensation as a coach, because more people watch football. Tell your friend who coaches track or swimming that his uniforms don't have to be current and he can have his team buy their meals on the road or become a club team because the women want too much.

Litagation is not a fear. Thousands of schools across the country do not follow the law.
However, knowing the trends for the future when fewer males will be attending institutions of higher learning, Title IX will be around to protect their rights.

12. tgroleau - April 20, 2010 at 12:29 pm

tannwalton - If you re-read my post you will notice that I framed my personal experience as consistent with other source. And no, for the sake of an on-line discussion of a Chronicle article, I'm not going to provide a literature review. Are you going to provide the lit review for "Historically we have seen that girls and woman have jumped at every opportunity to participate in sport that they have received."? I've talked about this issue with athletic directors and market researchers and gotten consistent feedback that males show more interest in sports than females.

As for other variables - of course there are confounding variables and I suspect that most of them are cultural. When I see a difference at the age of 4 that doesn't imply that it's biological. At that age my guess is that it's parent influence. As the kids get closer to oldest group I coached (~10) it may reflect broader cultural issues.

However, it doesn't matter whether it's cultural or biological. These students enter college with ~18 of cultural influence. Can we really expect colleges to change their basic interest? Higher ed should certainly broaden horizons but those who enter as athletes (or musicians, or artists, or bookworms) tend to exit the same way. Even if we could change their interests, it would be pretty hard to field a competitive team in any sport with a bunch of novices. Can you imagine what the concert band would sound like if it was filled with brand new musicians?

13. jaysanderson - April 20, 2010 at 12:54 pm

silly ineffective policy appropriately announced by Biden who is silly and ineffective.

14. headmin - April 20, 2010 at 01:35 pm

It's easy to be a Title IX hero when you don't have to pay for it.

Title IX on its face has merit, but strictly enforced by proportion becomes an unfunded mandate.

While colleges may have equal numbers of teams for mens and womens sports and compensate coaches equally, there remains differences as roster size varies from year to year. Forcing proportional compliance assumes demand. The survey allowed for common sense assessment of genuine interest by gender.


Title IX is not broken, colleges have made every effort to meet compliance. Ratcheting up Title IX mandates only further serves to paint brighter target circles on college sports.

If pressure increases on Title IX combined with present and future budget constraints, a number of institutions may see sports as a liablility and cut all intercollegiate athletic programs as a cost saving measure. (It would be polyanic to think cutting sports has not been a topic of college administrators faced with recent and impending budget woes)

The unintended intercollegiate consequence of equal opportunity for all, for some, will become a budget driven equal opportunity for none.



15. emwhite - April 20, 2010 at 01:54 pm

Every move toward equal opportunity has engendered the same opposition, usually based on pseudo-biology. Women should not be admitted to college, since study will stunt their reproductive organs. Blacks are not suited for (insert your favorite) since they are destined for physical labor. Jews and Orientals are too smart and will distort the curve. It's sad to see the same nonsense repeated here, with such fervor.

16. greenhills73 - April 20, 2010 at 02:06 pm

I totally agree with #2. It seems that Title IX demands the same number of slots for women as for men. Therefore, because football requires a large team, schools sometimes have to eliminate various men's sports and create women's sports in order to give women more slots. My son wanted to row, but that sport is only offered to women. Because his school has football, the number and variety of sports offered to women signficantly outnumbers the variety and number of sports offered to men. Title IX is seriously flawed.

17. rossirwin - April 20, 2010 at 03:05 pm

I totally agree with the statement by headmin, "The unintended intercollegate consequences of equal opportunity for all, for some, will become a budget driven equal opportunity for none". This is especially true in those institutions where the administration is not in favor of athletic scholarships period.

18. lakemendota - April 20, 2010 at 04:37 pm

I worked for OCR for many years and was a specialist in Title IX athletics. The push for prong 1, unfortunately labeld proprtionality, comes from the colleges NOT the Federal government. In the Clinton administration we took as many steps as we could to try to lead colleges away from using prong 1. It was bad politics to eliminate men's sports something that those of us who actually did compliance recognized. We could not tell colleges how to come into compliance and we didn't. It was their choice once non-compliance was identified. They more often than not chose prong 3, but it was the prong 1 approach that everyone focused on. Men's sports were eliminated not because of Tirtle IX but because Title IX existed it was used by ADs to rein in runaway athletic programs while not hurting football and men's basketball.

The newspapers including the Chronicle routinely and with much glee misreported on Title IX adding to the public's misperception of how it was being enfored. The misreporting made the colleges believe thast some how prong 1 compliance was better than any of the other methods of compliance. The NY Times was a major offender. It bad me wonder if the reporters were simply stupid or lazy just copying other reporters. Probably both.

19. lakemendota - April 20, 2010 at 04:49 pm

Sorry for the many typos--writing in anger makes you feel good but it has its drawbacks including typos.

Just for you all--the battle is over. The Title IX regs were issued in 1977. They survived four Republican administrations. Accept it.

20. tannwalton - April 20, 2010 at 04:59 pm

tgroleau -- it does matter if it's cultural or biological if we're going to use such statements to legitimate discrimination. Of course there's a lot of research that shows how women's sport has grown since they've been given opportunities. It's pretty cut and dried stuff, actually. It does not at all surprise me that you would hear from the mostly men in charge of current athletics when they say that women are just not as interested. It's blatantly self-serving to support the status quo.

I agree that for their to be changes at the college level on a broad scale those changes should, ideally, start at the younger levels.

Sport sanctions a certain physical freedom and development that is not available in other avenues of education. So it's not a surprise that many humans want access -- no matter their anatomy.

at any rate there are very, very few schools that offer the same number of participation opportunities to girls as boys or to women as men. This idea of title nine mandating this is purely myth -- along with the myth that the law mandates equal funding. a cursory look at any athletic budget would demonstrate how laughable that idea is. the Equity in Athletics Disclosure Act makes all of these numbers readily available.

It saddens me to see how people would rather talk through misconception rather than become informed.

21. marchman - April 20, 2010 at 05:55 pm

This whole argument is more government run amok. Thinking legislation and rulings will increase interest, awareness, or financial support for women's sports is ludicrous. The UConn women's basketball team had less than a thousand people show up for their welcome home ceremony after winning their second consecutive undefeated national championship--neither males or females care a hoot about women's sports.

The argument is made about Title IX being necessary for gender equality, but this is an area where the vast majority of all genders could care less. Both genders remain more interested in "Miss America" than a female "All American," and both genders care more about a male "All American" than any male "Miss America" equivalent.

This would be a splendid area to save money on campus by eliminating Title IX. While we could be sure that gender equity partisans would scream bloody murder, we also know that this is a wise move that has overwhelming majority would support. When many are advocating reducing the costs of college athletics this is one area where cuts would have landslide support.

A further argument about women's sports is that young girls have started playing sports, not because they care about a sport, but for the social aspect of being with their friends. As someone who used to teach in public schools, it was obvious--often glaringly obvious--they could care less about the sport, Win or lose the response was the same; they wanted to be with their friends and who cares about volleyball. It was the social component that meant the most to the girls. One year both the boys and girls team advanced to the state tournament that was held at the same site for class 3, the girls went farther in the tournament, but at none of the girls games were there even a third of our community's crowd that attended the boys games--despite the fact that distance required overnight accommodations and the schedule actually was such that it was not a major difficulty to attend both teams' games.

This interest in the social aspect also permeates college women's athletics. Some women do earn Title IX scholarships and achieve greater athletic success simply because not everyone is equal in ability, and while the scholarship is appreciated their real focus remains on academics and the social aspects primarily. Many female athletes would much prefer an academic scholarship to an athletic one.

Aside from the selfish "you need to provide me with what I want crowd" there is no justifiable reason for the big push for Title IX.

22. dlu39503 - April 20, 2010 at 06:17 pm

I've never been at a university that has a men student services office but every university I have ever been at has a female student services office. I have never been at a university that has a men's studies program that specialize in affirming the role of men throughout history or investigate men victimhood; but they have all had female studies programs that do so for females. I've seen far more scholarships specifically limited to female students. If we are going to talk inequality on campus, why not level the playing field on all fronts?

23. tgroleau - April 20, 2010 at 07:45 pm

tanwalton - We may agree more than we disagree. The limitations of text-based communication make it easy to be unclear. Therefore, let me try to clarify.

I am not arguing against Title IX at all. Without Title IX we wouldn't have had the 70's flood of females into college athletics that clearly demonstrated pent-up demand. I also have no argument with claims that some schools are still intentionally dragging their feet on providing female athletic programs. As a faculty member outside of athletics my impression is that my last school wasn't so good about it (whether by intent or by apathy I don't know) and my current school does pretty well.

My argument is that proportionality isn't an appropriate measure of success in providing opportunity. Whether the measure is selected by an athletic director or imposed by a government (thanks to lakemendota for the history/fact-check) it won't work as a measure unless we have other evidence that interest in athletics is proportional.

If the interest isn't there, it's not likely that a college can create it. My current school requires two "gym" courses for graduation: one general fitness course and one activity elective. Therefore we force all students to come face-to-face with athletics as part of their education. But we can't make them want to be athletes anymore than our general ed writing requirements can make them want to be writers.

I hope the clarifies my view and if we disagree, then we disagree. That's part of the academic world.

The personal irony is that I was never involved in college sports myself. All of my youth coaching (t-ball, soccer, and now football) resulted from my kids' choosing sports over music. However, it may have made me a better teacher because I understand my student athletes better and I've learned to appreciate the value of competitive sports for all students who pursue them, regardless of gender.

24. _perplexed_ - April 21, 2010 at 11:23 am

Easiest and most economical way to comply with Title IX: End all intercollegiate sports. What has any of this to do with the real purpose of the university? Club and intramural sports allow all the benefits of sports to accrue at far, far, lower costs. Just do it.

25. tannwalton - April 21, 2010 at 03:08 pm

tgroleau -- yes, I think you're right. We do agree more than disagree. what you're saying is why the policy on athletics allows departments to demonstrate a 'history and continuing practice of program expansion' relative to the growing interest and abilities of the underrepresented sex. That's one of the ways to comply.

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