Benching Title IX 

Education agency bootleg threatens women’s sports.

click to enlarge GYMBACK: UA's Dana McQuillin.
  • GYMBACK: UA's Dana McQuillin.
Before the enactment of the federal law known as Title IX in 1972, fewer than 32,000 women participated in college sports. Today, the number is 150,000. Female participation in high school athletics has increased from fewer than 300,000 before Title IX to 2.8 million. Despite this success — or because of it — Title IX remains intensely unpopular in some quarters, and some of those quarters are high and mighty indeed. Such as, supporters of Title IX say, the federal agency charged with enforcing Title IX — the U.S. Education Department — and the man who ultimately tells the Education Department what to do, the president of the United States. Members of Congress supportive of Title IX, and organizations such as the National Women’s Law Center in Washington, say that a new policy adopted by the Education Department is a huge threat to Title IX, one that could not only halt the progress being made, but actually roll back the clock in regard to opportunities for female participation in high school and college athletics. This is a memorandum from Marcia D. Greenberger, co-president of the NWLC, to newspapers around the country: “The Department of Education, without any notice or public input, recently issued a new Title IX policy — under the guise of a ‘Clarification’ — that creates a major loophole through which schools can evade their obligation to provide equal opportunity in sports. The policy allows schools to gauge female students’ interest in athletics by doing nothing more than conducting an e-mail survey and to claim — in these days of excessive e-mail spam — that a failure to respond to the survey shows a lack of interest in playing sports. It eliminates schools’ obligation to look broadly and proactively at whether they are satisfying women’s interests in sports, and will thereby perpetuate the cycle of discrimination to which women have been subjected. The new ‘Clarification’ violates basic principles of equality and threatens to reverse the enormous progress women and girls have made in sports since the enactment of Title IX. “This is not the first time that the Bush Administration has attempted to undermine equal opportunities for female athletes. Its attempts to do so through its 2002 Commission on Opportunity in Athletics were stalled by a massive public outcry in defense of Title IX. Unable to achieve its goals in the light of day, the Administration has now resorted to stealth tactics by unilaterally adopting this dangerous new policy without public announcement or opportunity for public comment. It simply appeared on the Department of Education’s web site on a Friday afternoon [in late March]. “We urge you to take an editorial position calling on the Department of Education to withdraw this misguided and illegal ‘Clarification’ and honor its promise to enforce long-standing policies that reflect Title IX’s goals and requirements.” The New York Times has urged the Education Department to withdraw the new regulation. So have Sens. Hillary Clinton and Ted Kennedy and other members of Congress. So has the NCAA, the governing body of college athletics. Secretary of Education Margaret Spellings declines to back down, and Department officials argue that the new regulation is not a substantive change in Title IX policy at all, but more of a tidying-up. (Told of the Education Department’s response, U.S. Rep. Vic Snyder of Little Rock said, “If it’s not substantive, why do it?”) Conservative commentators and anti-Title IX groups applaud the new regulation. Eric Pearson, the executive director of the College Sports Council, which describes itself as “a coalition of coaches, parents and athletes,” says that the regulation is “a viable, common-sense alternative to the gender quota that has wreaked havoc on college athletics.” Jessica Gavora, an author and critic of Title IX, says that feminists “are afraid of what interest surveys will show,” because they know the surveys will show that women are not underserved in athletics. In Arkansas, Frank Broyles, who has criticized Title IX in the past, is keeping his lip buttoned. With difficulty, one imagines. Title IX of the Educational Amendments of 1972 says: “No person in the U.S. shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any educational program or activity receiving federal financial assistance.” Obviously, Title IX does not apply only to athletics. Before Title IX, some colleges and universities limited women’s enrollment — or excluded them entirely — as well as limiting the number of women permitted to study in certain fields. Since enactment of Title IX, the numbers of women doctors, lawyers and Ph.D.s have grown enormously. But the athletic ramifications of Title IX have always drawn the most attention, and the most opposition. Coaches, athletic directors, and fans of the male athletic programs — especially football — at big-time athletic institutions fear that these programs will suffer because of Title IX’s demands for more women’s sports and more money spent on them. That the NCAA is opposing the new Education Department regulation many believe would cripple Title IX is an indication that most NCAA member institutions are relatively small, and spend more than they take in on athletics. Opposition to Title IX comes mostly from big-time football schools that generate considerable revenue from football and use part of that revenue to pay for the lesser sports programs. These institutions, fewer than 100, are members of major conferences like the Southeastern Conference, to which the University of Arkansas belongs. A Republican president, Richard M. Nixon, signed Title IX into law. Attacks on the law began almost immediately and continue today. Sympathetic courts have helped keep Title IX in operation. Some of the efforts to weaken the law: • In 1974, Sen. John Tower, R-Texas, introduced an amendment to exempt revenue-producing sports from being tabulated when determining Title IX compliance. In other words, football, the most profitable sport and the one with the most athletes, would be taken off the table when comparing the opportunities available to men and women. The amendment was rejected. • In 1975, a bill by Sen. Jesse Helms, R-N.C., and others would have repealed Title IX in its entirety. That same year, another bill proposed to disapprove Title IX only as it had to do with intercollegiate athletics. Both bills failed. • In 1977, Tower and others sponsored a bill to exclude revenue-producing sports from Title IX coverage. It died in committee. For years, the Education Department has allowed three ways (the “three-prong test”) for schools to meet Title IX’s requirement that they provide women with sports participation opportunities equal to those of men. A school can demonstrate compliance if: 1) The percentages of male and female athletes are about the same as the percentages of males and females in the student body (referred to as “proportionality”), or 2) The school has a history and continuing practice of expanding opportunities for the gender that has been excluded from sports — usually women. That means the school has added, and continues to add, sports for women. Or 3.) The school is fully and effectively meeting the interests of the underrepresented gender — usually women. It’s the third prong that is being changed by the Education Department’s new regulation/clarification/whatever. According to the National Women’s Law Center, “The Department’s new ‘Clarification’ allows schools not meeting either the first or the second prong to show that they are nonetheless in compliance with Title IX by doing nothing more than sending a ‘model’ e-mail survey to their female students asking about their interest in additional sports opportunities. The Department will presume that schools comply with Title IX if they administer this survey and find insufficient interest to support additional opportunities — even if schools get very low response rates — unless students can provide ‘direct and very persuasive evidence’ to the contrary.” Surveys have long been used to determine if a school is in compliance with the third prong. But until the Education Department’s adoption of the new regulation, the survey was only one of many factors that were considered. Others included requests by students to add a particular sport, participation rates in club and intramural sports, participation rates in sports in high schools and community leagues in the areas from which the school draws its students, and interviews with students, coaches and administrators. “I don’t see what the necessity was for changing the policy,” Snyder of Little Rock said. “The Title IX program has been successful. Surveys shouldn’t be the only assessment. College kids are busy. They don’t answer every survey. When I was in college, I threw away my student loan papers. I thought it was an advertisement from a bank.” U.S. Sen. Blanche Lincoln, the only woman in the Arkansas congressional delegation, said in a statement that the other methods of assessing interest that had been used in connection with surveys (such as interviews and participation in intramurals) had been important in helping women and girls achieve athletic equality. “Through Title IX’s implementation, we have seen young women succeed in collegiate sports, which are a good training ground for all young people to become leaders as adults. I am concerned that the Administration’s new policy could have a negative impact on helping young women to achieve athletic equality.” Snyder was not the only one who couldn’t see the necessity for changing the policy. After talking with a couple of Education Department officials by phone, a reporter’s vision was equally blurred. Jim Manning and David Black of the Department’s Office of Civil Rights said the Department had decided some years ago that it would look for the best practices in complying with Title IX, and make them available to everybody. They studied compliance with prong three and saw that many schools were using surveys. “Many of these instruments were lacking in scientific rigor. We made an instrument that is reliable.” They seemed to be saying that the superiority of the model survey prepared by the Education Department would make unnecessary some of the other methods that had been used. Also, they said that some critics of the new regulation seemed to believe that all of these other methods were required by law, but they are not. As for the survey being overlooked or ignored, “We recommend that it be done with required activities such as registration so that it won’t go in the spam file. … If somebody is looking to get around compliance, I don’t see how they could do it with this.” The two said they didn’t know which of the three prongs was most often used. “We don’t mandate one or the other.” The proportionality required by the first prong is not exact proportionality, not a 50-50 split, they said, but “substantial proportionality.” “But we don’t define ‘substantial proportionality.’ We look at it on a case-by-case basis.” University of Arkansas Athletic Director Frank Broyles declined to be interviewed for this article, referring all Title IX questions to the women’s athletic director, Bev Lewis. He’s spoken publicly, and harshly, about Title IX in the past — about schools being forced to drop some of their men’s sports, and about Title IX posing a threat to football, a men’s sport that has far more athletes and scholarships than any other sport, and that, at schools like Arkansas, generates enough revenue not only to pay for itself but for the other sports too. That UA has a women’s athletic director is an outgrowth of Title IX. Before then, one athletic director, male, was deemed sufficient. Lewis came to UA from Michigan as the women’s cross country and track coach in 1981. She’s been director of women’s athletics since 1989. In the last school year, 49.5 percent of UA’s enrollment of 17,328 was women, but only 41 percent of the athletes were women. “We don’t meet the proportionality requirement, obviously,” Lewis said. The UA uses the second prong, “expanding opportunities,” to comply with Title IX. “Every three or four years we add a sport.” The university now has 11 women’s sports, counting indoor track and outdoor track as separate sports, as is the custom. Gymnastics, added a couple of years ago, is the newest. The others are basketball, swimming and diving, tennis, cross country, soccer, volleyball, softball and golf. In fiscal 2004, there were 222 participants and 107 scholarships in those sports. There were 324 participants and 129 scholarships in seven men’s sports — baseball, basketball, indoor track, outdoor track, football, golf and tennis. Eighty-three of the scholarships were in football. The most popular men’s sports, especially football, attract large numbers of fans and generate revenue for the university. In fiscal 2005, men’s sports at UA generated nearly $39 million in revenue, $27 million of it from football and $9.6 million from basketball. None of the women’s sports is a revenue-producer. That is true on practically every campus. Women’s basketball at places like Tennessee and Connecticut may make money, but those are rare exceptions. Lewis said that in the next year or two, her department would begin studying the possibility of adding another women’s sport. And, she said, UA probably will continue using the second prong of Title IX (the addition of opportunities) as its means of compliance with Title IX. She did not seem worried about the Education Department’s new regulation having an effect on UA, but she knew that some people feared it would dilute Title IX. “I can see the concern” about using e-mail surveys alone to determine interest, she said. “Title IX has been very positive,” Lewis said. “We wouldn’t have seen the growth of women’s sports without it.” Who will decide for certain that Arkansas continues to use prong two, that it doesn’t take advantage of the apparent loophole provided by the Education Department’s new regulation? Lewis said that generally, the two athletic directors consult on such issues. In the past, “We’ve pretty well come to decisions on what to do,” she said. If the athletic directors couldn’t agree, the matter would be handed upward to the chancellor and maybe eventually to the board of trustees, she said. At Arkansas State University in Jonesboro, 59 percent of the students are women, but only 34.7 percent of the athletes. But ASU is expanding the opportunities for women’s athletes, as provided in prong two, according to Randy Kalman, associate director of athletics for ethics and governance. “We added soccer in 2000, and bowling last year,” Kalman said. “We’ll be doing a feasibility study of adding another women’s sport in a year or so.” ASU is continuing to use prong two, and the Education Department’s new regulation has had no effect on the university so far. “I can’t say that it won’t ,” Kalman said. Lu Hardin, president of the University of Central Arkansas, and a lawyer by training, has written extensively on Title IX, and is, he says, “a passionate advocate.” He said UCA would not be interested in trying to circumvent Title IX through loopholes, and he couldn’t see the courts allowing it anyway. (Neena Chaudhry, senior counsel for the National Women’s Law Center, said that the group was continuing to apply pressure to the Education Department and that litigation is “one of many options we’re considering.”) “I think the courts will continue to hold universities to substantive results, as they have in the past,” Hardin said. “They won’t be able to send out a survey and say that meets the interests-and-abilities test.” Some coaches and athletic directors claim that Title IX has forced them to eliminate men’s sports in order to achieve proportionality (this is the “havoc” that Eric Pearson referred to), and a 2001 General Accounting Office report noted men’s wrestling, tennis, gymnastic and tennis teams had been reduced in number since 1972. But Hardin said the courts have been very strict in saying that simply eliminating men’s sports is not sufficient to comply with Title IX, that there must be an expansion of opportunity for women, as well. Coaches and ADs would counter that even if Title IX doesn’t technically require the elimination of men’s sports, the continuing addition of new women’s sports takes money from a limited athletic budget, forcing the elimination of men’s teams for financial reasons. Groups such as the NWLC respond to that by saying that instead of eliminating minor men’s sports, the schools could save money on football, by reducing the large number of scholarships (85 are allowed in Division 1 football), reducing the size of coaching staffs, etc. And so it goes. Hardin may be right that the federal courts will not allow schools to use only surveys to determine women’s interests and abilities in women’s sports. Certainly he would have been right a few years ago. But the courts have changed, as Republican presidents have appointed more and more extremely conservative judges. President Bush is continuing that practice, perhaps taking it farther than it’s ever been taken. Title IX is exactly the sort of law that activist conservative judges would love to nullify. Title IX’s supporters, and women athletes, have reason to worry.


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