The Trouble with Title IX

Title IX of the Education Amendments of 1972 purports to guarantee nondiscrimination in education. Nevertheless, it has been subject to a succession of bureaucratic “interpretations” that have practically twisted it into the legal trappings of a quota system. It may now be poised for reform.

Title IX is interpreted by the Office of Civil Rights, an agency within the U.S. Dept. of Education. Title IX compliance wasn’t fully expected until 1978, following two grace periods of three years each, the original one ending in 1975, and the other (begun after Congress passed regulations for the implementation of Title IX) ending in 1978. In 1979, confusion over what the legislation actually required prompted the Education Dept. to issue a policy interpretation that put forth a three-prong test for compliance with Title IX. In 1984, the Supreme Court muddied the waters further by ruling that Title IX applied only to education programs receiving direct federal support, which basically took athletics off the Title IX hook. Congress, however, put athletics back on the hook in their 1988 revisions of the law.

Meanwhile, the Education Dept.’s three-pronged test for compliance itself proved exceedingly obscure, prompting legislators to call on the department for a more explicit policy interpretation. The Education Dept. responded in 1996 with its report, “Clarification of Intercollegiate Athletics Policy Guidance.” That report, however, itself lacked clarity.

The OCR requires universities to meet only one of the following three prongs to comply with Title IX: (1) Substantial proportionality (a school’s proportion of female athletes must be about the same as its proportion of female undergraduates); (2) “History and continuing practice” (a school must show that although it lacks substantial proportionality, it has expanded and is still expanding athletics opportunities for women); and (3) “Fully and effectively accommodating interests and abilities of the underrepresented sex” (school must show that although they lack substantial proportionality, they are meeting all the athletic needs of women on campus). The first prong is considered the most important, because, as The Chronicle of Higher Education reported Dec. 5, “the Education Department and the courts have indicated that universities that meet the substantial-proportionality standard are essentially immune from lawsuits and complaints filed with the department’s Office of Civil Rights.”

Feminist proponents of the current interpretation of Title IX like to talk about how it has “leveled the playing field” for female athletes. That’s a somewhat Robespierrean take on the matter.

According to Christine Stolba of the IWF, “more than 80,000 slots for male athletes on intercollegiate teams have disappeared from college campuses” owing to Title IX. On May 9, 2002, The New York Times reported that a General Accounting Office study found that “more than 170 wrestling programs, 80 men’s tennis teams, 70 men’s gymnastics teams and 45 men’s track teams have been eliminated.” As of June 2002, the OCR was involved in 111 cases involving Title IX and the application of the three-prong test.

This month a commission set up by the Education Dept. will release recommendations on how to change its enforcement of Title IX. The Secretary’s Commission on Opportunities in Athletics has been holding public sessions and town-hall meetings across the country on the subject.

Commission members have focused on the confusion over the three prongs and also the relative weights assigned those prongs. Members noted that the OCR has no explicit standard of “substantial proportionality” (e.g., how close the proportion of female athletes needs to be to the proportion of female students), relying instead on a subjective, case-by-case application. Several called for giving greater weight to the second and third prongs to help alleviate the quota-system aspect. There was also discussion of investigating “the flawed assumption that the undergraduate population has anything to do with athletic interest,” as commission member Robert A. Bowlsby, the athletics director at the University of Iowa, said.

It is, of course, too soon to tell whether this commission’s work will actually alleviate the confusion over Title IX enforcement, or whether it represents the Bush administration’s “planned attack on Title IX athletics policies” that National Women’s Law Center co-president Marcia D. Greenberger warned about earlier this year. The commission must report its recommendations no later than Jan. 31, 2003.