COLLEGE OFFICE OF CIVIL RIGHTS CLARIFIES INTERPRETATION OF TITLE IX

CAA’s Myles Brand, quota advocates speak out of both sides of their mouths on Title IX

Some people aren’t satisfied even when you do what they ask. Then again, when that happens, perhaps those people were talking out of both sides of their mouths, anyway

This week, the Office of Civil Rights (OCR) issued a new clarification about the interpretation of Title IX, a federal law that has had dramatic effects on college athletics. This has been a hot topic in recent years, as people have debated if there needs to be Title IX reform to halt the disastrous loss of sports opportunities due to the enforcement of the law.

Basically, the OCR addressed the three-part test used to evaluate Title IX compliance. There are three ways in which universities can comply with the law. They basically are:
1) if participation is “substantially proportionate” to enrollment
2) if a school can show a “history and continuing practice of program expansion” for women
3) if a school can show that it accommodated the “interests and abilities” of women

In 1996, the OCR said that part one, proportionality, was a safe harbor, giving that method of compliance prominence over the other two parts.

Those in many Olympic sports, including wrestling, consider proportionality to be a quota. By having “safe harbor” status, proportionality became the only sure way to comply with the law. The other two parts were ineffective and were in fact just stepping stones that ultimately led to using the quota over time. This has resulted in drastic cuts in men’s sports opportunities, often without gains for women, so say the Olympic sports leaders, who have the statistics to support this.

During the well-publicized Commission on Opportunity in Athletics hearings in 2002 and 2003, leaders within the Olympic sports called for the elimination of the proportionality quota. Those who defend the quota would answer that proportionality is not a quota, because there is a three-part test and that colleges can use the other two parts.

The Commission voted on a number of recommendations. Included in the vote was an approval of using interest surveys to determine Title IX compliance, passed by a 10 to five vote. Numerous other suggested changes in enforcement were passed by the Commission.

Ultimately, after the Commission hearings ended, the Bush Administration chose not to listen to the suggestions of the panel, and issued a weak clarification that did not change the law. Those that were seeking to eliminate proportionality or change it dramatically did not get their way.

Now, the OCR issues a new clarification of the enforcement rules, basically saying that all three parts of the test are “safe harbors.” That means that if you can comply with any of the three, you are not in violation of Title IX. A method for using part three, the “interest and abilities” test, was clarified, with a Model Survey for colleges to use to test whether or not they are accommodating interest.

Those that would like to see the quota eliminated did not get what they wanted again. Those who said that there are three ways to comply with Title IX were given what they asked for, a way to actually prove that compliance could be measured in part three.

Ultimately, after the Commission hearings ended, the Bush Administration chose not to listen to the suggestions of the panel, and issued a weak clarification that did not change the law. Those that were seeking to eliminate proportionality or change it dramatically did not get their way.

Now, the OCR issues a new clarification of the enforcement rules, basically saying that all three parts of the test are “safe harbors.” That means that if you can comply with any of the three, you are not in violation of Title IX. A method for using part three, the “interest and abilities” test, was clarified, with a Model Survey for colleges to use to test whether or not they are accommodating interest.

Those that would like to see the quota eliminated did not get what they wanted again. Those who said that there are three ways to comply with Title IX were given what they asked for, a way to actually prove that compliance could be measured in part three.

So what is all this noise about coming from the quota advocate groups and from NCAA President Myles Brand? Every time people tried to call proportionality a quota, they said it was not because there are three ways to comply. Why would these people oppose the OCR developing a way to comply within part three?

The National Women’s Law Center said the Bush Administration “weakened” Title IX. They claimed that the “Department of Education makes it easy for schools to escape their responsibility under Title IX.” The Feminist Majority issued a statement claiming that the department “released a letter weakening the requirements of Part Three of the three-part test.” HUH??

Even more shocking was the immediate response from NCAA President Myles Brand, who said he was “disappointed.”

Brand claimed that the clarification was issued without “benefit of public discussion and input.” I don’t know where Brand was in 2002 and 2003 during the year-long Commission hearings, but that was certainly public discussion under any unbiased view. And, clearly Title IX has never ceased being a public topic since, often debated in the media and within academic circles.

Brands also acted as if this clarification of one of the prongs could be disastrous, another the-sky-is-falling declaration. Brands said this decision could be “a failure that will likely stymie the growth of women’s athletics and could reverse the progress made over the last three decades.” WHOA!!!

Let’s take a step back here. Those seeking Title IX reform asked for the elimination of proportionality and called it a quota. The other side said that it was not a quota because there are three ways to comply with the law. So the OCR decides to agree with the quota advocates and bolsters the three-part test by giving some guidance and a measuring tool to the third part. You might think the people who claimed that there are three ways to comply with the law would be happy that the OCR is working hard to maintain the three-part test, right?

The initial response to the OCR decision shows just one thing. These people only care about protecting and defending part one, the proportionality quota. They are not really interested in seeing part two or part three become well defined and effective. They only want to use the quota. IT’S ALL ABOUT THE QUOTA.

They have been and are continuing to speak out of both sides of their mouths. They want their cake and eat it too. They ask us to accept a three part test, then they want to reject the three-part test when there is any movement away from the use of proportionality.

There is something in the OCR letter that needs to be reinforced again and again and again. The clarification letter included the following sentence:

“Schools are also reminded that nothing in Title IX or the three-part test requires the cutting or reduction of opportunities for the overrepresented sex, and OCR has pledged to seek remedies that do not involve the elimination of opportunities.”

This is something that we should all focus on and remember when discussing Title IX policy. If a change in part three will cease the senseless elimination of sports opportunity to men in the name of Title IX compliance, shouldn’t everybody be happy?

NCAA Men’s Athletic Programs Cut To Comply With Title IX.


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