Posted by: Ethan Johnson | September 3, 2010

Title IX Compliance: Clarification Needed

I thought I had Title IX theory reasonably figured out, but then again, I don’t run a school that receives federal funding. My understanding, which was confirmed (I believe) by a source so reputable as to be the Office of Civil Rights, is that compliance with Title IX is a three-prong test, which means the school can opt to comply one of three ways:

1. Whether intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments; or

2. Where the members of one sex have been and are underrepresented among intercollegiate athletes, whether the institution can show a history and continuing practice of program expansion which is demonstrably responsive to the developing interests and abilities of the members of that sex; or

3. Where the members of one sex are underrepresented among intercollegiate athletes, and the institution cannot show a history and continuing practice of program expansion, as described above, whether it can be demonstrated that the interests and abilities of the members of that sex have been fully and effectively accommodated by the present program.

Having provided the official three-prong test language as supplied by the OCR, I will now demonstrate my understanding of the three prong test, and readers are encouraged to provide corrections and clarification as necessary:

Prong 1: Let’s say MWS State University (fictional) enrolls 1000 students, so we can work with a bite-sized number. Let’s say that MWS State is 55% male and 45% female. Obviously, males have a slight edge in numbers, and maybe they’re all jocks and want to play sports. At the absolute most, MWS State should offer 6 sports for men and 5 sports for women (rounded up from 5.5 sports for men and 4.5 sports for women). If MWS State instead offered 25 sports for men and 3 sports for women, that is NOT proportional to the enrollment (even if all of the women do not wish to play sports) and therefore, if MWS State opted to be rated on proportionality, the school would NOT be in compliance with Title IX.

Prong 2: Okay, so MWS State says “whoops, what we meant to say was, rate us on how we have been adding, and continue to add women’s sports to satisfy the growing interest in women’s athletics.” Sure, there is a 25-3 disparity, but that could be up from 22-0, and plans are in motion to add 3 more women’s sports in 2013. Depending on what is going on at MWS State, they could get busted for not being in compliance with Title IX not only because of the existing disparity between men’s and women’s athletics, but because MWS State is arguably dragging its feet on closing the gap. Remember, the gap is not “50-50”, it is “55-45”, that is, if MWS State wants to shift over to being rated on Prong 1 compliance.

Prong 3: Oh ho, well, see, the reason why there aren’t that many women’s sports at MWS State is because all of the women were lured to the school for their first-class Scrapbooking program, whereas most (if not all) of the guys consider it a sports school. However, as women’s sports have been added to the roster, women have either come to the school with the intent of playing those sports or existing students have sparked up an interest in playing them, and therefore – perhaps – MWS State is very much in compliance with Prong 3. For now, unless women start getting denied opportunities to play sports at the school because there aren’t enough teams or activities to go around. Which, in my estimation, suggests that the Three Prong Test is a graduated system, where Prong 1 might be viewed as “best” and Prong 3 might be viewed as “worst” – but here’s the kicker, so pay attention – however meeting any of the standards as spelled out in the Three Prong Test does in fact signal compliance with Title IX.

Here’s the rub, and where there are rubs, there is friction.

“Activist” Title IX proponents appear to be, and I want to stress “appear” once more, concerned solely with Prong 1 as the gold standard for Title IX compliance. To wit:

Although I believe it is necessary to retain the proportionality standard in order to protect women’s athletic opportunities, it is good to be reminded of its shortcomings and the tradeoffs that such a standard requires. There’s no easy way to balance the pros and the cons of incorporating proportionality into our measure of equality, but for starters, this Article makes clear that we can’t let Title IX and the goal of women’s sports advocates be reduced to just that.

Which leads to “Reform” Title IX proponents to argue that Title IX has, in fact, been reduced solely to Prong 1 compliance, and because that’s not always realistic, Title IX needs an overhaul. To wit:

But college tennis is not considered a pathway to professional stardom, either for men or women. Growth in the sport has been stagnating for years, as athletics directors seek to boost women’s participation by adding sports with large head counts (i.e., rowing) and cut back on men’s sports with weak constituencies (i.e., tennis). The College Sports Council, which supports changes in the current enforcement of Title IX, released data to that effect this week.

Naturally, the Women’s Sports Foundation and the NCAA took exception, saying it is unfair to blame Title IX.

He said, they said. Nothing new here.

Perhaps not, but in reviewing some of the CSC’s “smoking gun” material concerning their opposition, I find myself unpersuaded and unconvinced that Title IX “reform” is truly about fairness and equity, and more about chafing against regulation.

Now: I do believe it is important to cast a wary eye in the direction of Title IX enforcement, and the interpretation of how compliance is to be achieved. If indeed, the Title IX “activist” crowd has reduced Title IX to a single-prong test, and more importantly, germane only to athletics, that’s a problem. And I agree completely that one need not look far in the hallowed halls of academia to find someone that has staked out a radical position on most any topic.

I will lay this topic aside for the moment, but will ask in closing: How do you interpret Title IX? If you were to assess a school’s compliance with Title IX, how would you determine if the school is in the clear? Most importantly, if you applied Prong 1 and the school did not comply, would you deem the school to be out of compliance entirely with Title IX?

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Responses

  1. Ethan — While you have correctly quoted the three prongs, the reality on the ground is quite different thanks to the ever-present threat of litigation.

    In 1996, OCR issued guidance that created a legal safe harbor for Prong One. Since then, proportionality — which is no gold standard in our view — has become the only prong you can use that gives 100% protection against possible litigation. And it was the widespread application of proportionality that presaged the decline in so many men’s Olympic sports from wrestling to soccer to tennis. It’s also widely acknowledged that proportionality has stifled the growth of men’s lacrosse.

    http://insidelacrosse.com/news/2010/09/01/title-ix-still-restricting-growth-lacrosse-collegiate-level

    As for being unimpressed with our “smoking gun” evidence, can you blame us for taking our adversaries at their word? After all, we’ve seen proportionality wipe out literally hundreds of teams and nearly drive one sport, men’s college gymnastics, to the brink of extinction.

  2. Thank you for your comment, Eric.

    In 1996, OCR issued guidance that created a legal safe harbor for Prong One. Since then, proportionality — which is no gold standard in our view — has become the only prong you can use that gives 100% protection against possible litigation.

    Uhm, seems to me the Title IX Blog (for example) is littered with stories about Prong One litigation. Not sure how it is “litigation proof”.

    It does concern me that major emphasis has been put on proportionality if for no other reason than, as one of your “in their own words” people noted, it sets Title IX up as a convenient smokescreen for cutting programs. I wasn’t as explicit as I should have been in the bulk of my article, so here it is explicitly: How do you know if your school is compliant with Title IX? And how do you know if Title IX is directly responsible for program cuts?

    I am not arguing that there’s no possible way that Title IX could compel a school to trim back programs in the name of proportionality (in truth, I believe the more likely culprit is cost-cutting, but hold open other possibilities). It is incumbent upon me to learn more about the issues surrounding Title IX, but conversely I always ask that its supporters and detractors “show their work”.

    To that end, I assure you that I will be examining the CSC site in greater detail soon.

  3. You can read more about the 1996 OCR clarification here:

    http://library.findlaw.com/1998/Jan/16/130294.html

    For an example of how it works, take a look at the graphs from the Soccer study we issued this past June:

    http://savingsports.blogspot.com/2010/06/soccer-opportunity-gap-in-pictures.html

    The trend lines in our tennis chart is much the same:

    http://www.savingsports.org/tennisprograms.pdf

    In short, something happened in 1996. And that something was the broad application of proportionality in Title IX enforcement.

  4. You might want to look at some of the criticisms of the College Sports Council’s most recent research. It was a very limited timeline and covered only Division I, the smallest segment of college sports. This site has their own “charts,” too.

    http://www.womenssportsfoundation.org/Content/Press-Releases/2010/CSC-repsonse.aspx

    While I certainly benefitted from Title IX (girls soccer at age 10, in 1977, and college soccer — though in its infancy — ten years later) I strongly believe that there is A LOT of room to improve the opportunities for girls’, and ultimately womens’ sports. All the answers cannot be found in Title IX. Reformers need to truly reform and to do that they needs to be creative. I think that too much time, energy and money is being spent in the wrong areas.

    Deidre Silva


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