By Staff
Athletic Management, 17.4, June/July 2005, http://www.momentummedia.com/articles/am/am1704/wuinternet.htm
Most administrators know that there are three ways to comply with Title IX: by having a ratio of male to female student-athletes that’s proportional to the entire student population, by showing evidence of working toward proportionality, or by proving that existing offerings satisfy the interests and abilities of the underrepresented sex. However, one aspect of the law has never been fully addressed: If you choose the third prong, how do you demonstrate that the interests and abilities of your female students are being met?
In March, the U.S. Department of Education (DOE) tried to shed some light on that question with a set of guidelines on how colleges and universities can measure student interest. Most notably, the guidelines announce that Internet-based surveys of the student body are an acceptable means of determining interest in athletics.
In a 177-page document, the DOE explains how surveys can be used and provides a “user’s guide” for college administrators. The guide includes a model Internet survey, instructions for informing students about survey participation, and an extensive technical report explaining how results should be calculated.
The model Internet survey contains eight screens and takes only a few minutes for students to complete. After collecting some anonymous demographic information (age, gender, year in school, and student status), it asks respondents whether they have participated in, now participate in, or are interested in participating in sports. Those who say yes then select from a list of the 23 NCAA championship sports and seven emerging sports. For each sport selected, students report their high school participation experience, level of current participation, level of interest in future participation, and ability to participate.
The Office for Civil Rights (OCR) says the survey should be given to all students, rather than a statistical sample, and it recommends making participation mandatory, for instance by incorporating it into the students’ course registration process. But the guidelines also state that notifying students via e-mail is sufficient for encouraging participation. “Although rates of nonresponse may be high with the e-mail procedure,” the guidelines explain, “the OCR will interpret such nonresponse as a lack of interest.”
Skeptics quickly denounced the new guidelines, especially the e-mail provision, calling them an attempt to undermine Title IX by offering schools an easier alternative to proportionality. Former Senator Birch Bayh of Indiana, who wrote the original Title IX legislation in the early 1970s, told The Tampa Tribune that “the people who came up with this interest test have done everything they can do to create a loophole.” Neena Chaudhry of the National Women’s Law Center said in USA Today that “they’re finding a way to weaken Title IX … this allows schools an easy way out.”
The DOE maintains that Internet surveys can be a legitimate indicator of student interest, if properly implemented. “Our survey instrument was developed by experts from the National Center for Education Statistics and meets every test in terms of assuring that it will accurately measure the interest of the students who take it,” says James Manning, Acting Director of the OCR.
“We’re making an additional tool available to schools that are looking to comply under the third prong,” Manning continues. “We think it will be useful, and we’re confident that if it’s used correctly, it will often help schools identify unmet interest, and that’s what this is all about.”
Stanford University Athletic Director Ted Leland, who co-chaired the DOE’s Commission for Opportunity in Athletics when it reviewed Title IX three years ago, says the effort to clarify the third prong is commendable, but both the process and the results missed their mark. “Title IX is a public treasure, and there ought to be a transparent process and open discussion whenever the administrative rules are changed. That didn’t happen here,” he says. “Our commission had a lot of discussion about the use of testing for measuring interest, and we were split so we didn’t make a recommendation. But measuring someone’s interest in participating in athletics is much more complicated than just sending out an e-mail.”
Leland is particularly unsettled by the idea that nonresponse to the survey constitutes a lack of athletic interest, and he believes surveys should be only one piece of the puzzle. “There are other places to look,” he explains. “You can interview some students, and look at local high school participation levels and your own institution’s club sports participation. The issue is whether it’s as simple as one measure, and I don’t think it is.”
While women’s advocates fear the impact of the OCR’s new guidelines, they are hailing another piece of Title IX news as a welcome expansion in the scope of the law. In March, a 5-4 majority of Supreme Court justices ruled that Title IX protects whistleblowers from retaliation when they complain about gender inequity at an academic institution.
The case involved Roderick Jackson, an Alabama high school teacher and girls’ basketball coach who sued his school in 2001 claiming he was fired for complaining that the school provided vastly inferior facilities and resources to his girls’ team. His initial lawsuit in a U.S. District Court and subsequent appeal to a U.S. Circuit Court were both dismissed on the grounds that Title IX does not specifically address retaliation, and that Jackson is not among the class of people the law was intended to protect.
But the Supreme Court overturned those rulings in deciding that Title IX does protect those who speak out about perceived gender inequity. In the majority opinion, Justice Sandra Day O’Connor wrote that “without protection from retaliation, individuals who witness discrimination would likely not report it … and the underlying discrimination would go unremedied.” The dissenting opinion, supported by the National School Boards Association, countered that Title IX makes no mention of retaliation and warned that the decision opens a new area of legal vulnerability for school districts.
Jackson, who never left his teaching job in the Birmingham City School District, was reinstated as coach in 2003, and his school has since taken steps to address the inequalities that prompted his grievances. He may now take his lawsuit back to District Court, where he must prove that his firing was a direct result of the Title IX complaints. After the Supreme Court ruling was announced, Jackson called it “a win-win for the schools and the students.”
The OCR’s clarification of the third prong of Title IX, including the downloadable user’s guide and technical manual explaining the use of surveys, can be found at: www.ed.gov/about/offices/list/ocr/docs/title9guidanceadditional.html.