by Neena Chaudhry, Senior Counsel
National Women’s Law Center
Three years ago today, effectively in the dark of night, the U.S. Department of Education weakened Title IX’s requirement that schools provide women and girls with equal opportunities to play sports. Why would the agency deal such a blow to the very law it is charged with enforcing? Understanding that requires us to go back to 2002, when the Department established, with a name of which George Orwell would have been proud, a “Commission on Opportunity in Athletics” in response to claims that Title IX was hurting men’s teams. Its purpose was to determine whether current standards for measuring equal participation opportunities should be revised, and - lo and behold – it made recommendations for extensive changes that would have gutted the law. But after witnessing a massive outcry in defense of the law, the Department decided not to change any of the standards (oh, and there was that pesky issue of an upcoming election and polls showing how popular Title IX is) and instead promised to enforce the law.
But this promise was short-lived. On March 17, 2005, without any notice or opportunity for public input, the Department issued an “Additional Clarification” of the Title IX participation requirements and changed the standards that had been on the books for decades. The Clarification allows schools to show that they are fully meeting their female students’ interests in sports—one avenue for compliance—simply by sending an email survey to all female students and then claiming that a failure to respond indicates a lack of interest in playing sports. Prior standards made clear that schools had to look at other indicators of interest – such as participation rates in high schools in the relevant area – in order to demonstrate compliance.
The Clarification is the Department’s attempt to do under the radar what it was unable to do publicly—change Title IX. The notion that schools can decide whether women are interested in additional sports opportunities by sending a mass email is ridiculous. What if the email gets stuck in a female student’s spam filter or the student just doesn’t read it (hard to believe, I know)? The Department of Education thinks, in another Orwellian maneuver, that a failure to respond, even under these circumstances, shows that the student is not interested in playing sports. If that’s such a good idea, maybe the Department should propose using this method to decide whether schools should field men’s football and basketball teams
The Department of Education insists that the Clarification is not a change in policy, but it is the only one that thinks so. The NCAA, the Knight Commission on Intercollegiate Athletics, prominent athletic directors, and members of the 2002 Commission have spoken out against this dangerous change in policy. Even groups opposed to Title IX, such as the College Sports Council, acknowledge it is a change in policy. Members of Congress on both sides of the aisle have called for the Clarification to be withdrawn. Not surprisingly, no school has publicly embraced the model survey, but it remains out there for schools to use, under the radar.
Too bad it’s not a happier anniversary.
I remember life before Title IX and it was dismal if a woman liked to play sports; team or individual sports, didn't matter. There weren't any choices, except cheerleading and I am not cheerleader material and I didn't "run" in that crowd. Only the men mattered and often still have the only game intown.
A new President and a renewed Senator Hiliary Clinton can and will make a difference; all we have to do is stick together and get them elected in the Fall.
Posted by: Alice Darr | June 29, 2008 at 05:02 PM
I'm sorry, if a girl doesn't have the capacity to read and respond to an email, she probably should be spending more time in the classroom than playing sports and definitely shouldn't be given the ability to limit a boy's right to participate vis a vis the proportion/quota prong.
Posted by: Aaron Matthews | May 28, 2008 at 12:00 PM