Federal commission urges changes to Title IX enforcement

In late February a federal commission released its final report on recommendations on reforming the enforcement of Title IX of the Education Amendments of 1972. Entitled “‘Open to All’: Title IX at Thirty,” the Secretary of Education’s Commission on Opportunity in Athletics praises the legislation for expanding athletic opportunities for women but criticizes how enforcement has led to the elimination of opportunities for men.

The Office for Civil Rights is criticized heavily in the report. The report faults OCR for being unclear in its 1979 policy interpretation of Title IX (which created the three-prong test for compliance), for its field offices’ giving conflicting information regarding compliance, and for not enforcing the legislation strongly enough. The OCR also does not use a definition of sports to assess participation opportunities, thus missing “emerging sports” such as cheerleading and bowling among others. “There is great confusion about Title IX requirements caused by a lack of clarity in guidance from the Office for Civil Rights,” the report found.

Furthermore, the report found, the OCR doesn’t properly enforce its three-prong test, but instead has let it be known it favors the “substantially proportionate” test (i.e., the male/female ratio of athletes is similar to the male/female ratio of enrollment) as the only “safe harbor” standard to meet to avoid further OCR scrutiny. “If a school claims it is in compliance under one of the other tests” — i.e., either showing it has a “continuing practice of program expansion” for members of the underrepresented sex or is “fully and effectively” accommodating their interests and abilities — “the Office will scrutinize that claim more carefully since compliance under either of these parts is not a safe harbor.”

Given the confusion and the overemphasis placed by OCR on the “substantially proportionate” test, the report found, an unintended consequence of Title IX has been the elimination of men’s athletics teams and opportunities, especially non-revenue or Olympic sports. “[T]he Commission was told that when faced with a complaint regarding its athletics programs, an institution may feel that cutting a team or capping opportunities is an easy way to gain compliance,” and “all agree that there has been a troubling decrease in athletic opportunities for boys and men.”

The report also proposed expanding opportunities for women (and men) by schools lifting artificial limits on walk-on opportunities and the NCAA allowing more scholarships for women’s teams.

The report makes 23 recommendations regarding enforcing Title IX (see accompanying box). Among them are the commission’s recommendation that OCR “provide clear, consistent, and understandable written guidelines for implementation of Title IX and make every effort to ensure that the guidelines are understood.” The commission recommended ensuring changes by OCR would not “threaten any progress in creating athletic opportunities for women,” but also OCR should “make clear that cutting teams in order to demonstrate compliance with Title IX is a disfavored practice.” The report also proposes several recommendations to deal with the test for compliance, its “substantially proportionate” prong, and ways to expand the test.

“We just want to make a good thing better,” Secretary of Education Rod Paige said of the report and Title IX. “We want something to help all Americans.”