By Staff
Coaching Management, 13.9, October 2005, http://www.momentummedia.com/articles/cm/cm1309/bbtitleixcases.htm
Advocates of gender equity in athletics see a mixed picture in two recent federal decisions. Meanwhile, equity in facilities continues to be a growing avenue for Title IX complaints.
A change in the way Title IX compliance can be measured raised alarm among the law’s proponents this spring, when the U.S. Department of Education (DOE) unveiled a “clarification” allowing schools to use e-mail surveys to gauge interest in athletics. The National Women’s Law Center (NWLC) called the change an attempt to weaken Title IX, and the NCAA urged the DOE to rescind the clarification. The NCAA also asked its member schools not to use the new e-mail survey option.
Institutions can comply with Title IX in three ways: by demonstrating that the percentages of male and female athletes are approximately the same as the percentages of males and females in the student body; that the school has a history and continuing practice of expanding opportunities for the underrepresented gender; or that it is fully and effectively meeting the athletic interests and abilities of the underrepresented gender. Under the DOE’s clarification, schools attempting to pass the third test may now use e-mail surveys to prove that underrepresented students are content with their current offerings.
The DOE provided institutions with a model Internet survey, which 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, their current participation, their interest in future participation, and their ability to participate.
Most troubling to Title IX’s supporters, the clarification allows schools to interpret lack of response to the e-mail survey as lack of interest. “That is one glaring flaw,” says 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. “It’s like having a local tax referendum and saying anybody who doesn’t go to the polls is voted as a ‘no.’ Measuring someone’s interest in participating in athletics is much more complicated than just sending out an e-mail.”
While women’s sports advocates fear the impact of the DOE’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. 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.” Jackson is now free to take his lawsuit back to district court, where he must prove that his firing was a direct result of the Title IX complaints.
Parents whose daughters play on sub-par softball fields also continue to take action under Title IX. “A substantial portion of the cases we’re getting involve disparities between baseball and softball fields,” says Neena Chaudhry, Senior Legal Counsel for the NWLC. “Baseball fields having a lot of amenities that softball fields don’t have seems to be the case at a large number of schools.”
Field inequality became the focus this spring at Mayo High School in Rochester, Minn., where the baseball coach found himself calling a game due to darkness even though the school’s field was equipped with lights. The adjacent softball field doesn’t have lights, and so after an investigation by the Office for Civil Rights, the district decided to discontinue night baseball games.
Rochester’s solution—preventing baseball players from using a resource already in place—is technically legal, but it’s not ideal, according to Chaudhry. “We refer to that as ‘equalizing down,’ and it’s always better to equalize up if possible,” she says. “When you equalize down, you often end up with a situation that makes both girls and boys feel bad, since the girls feel like they were responsible for taking something away from the boys. It also creates a backlash against Title IX and creates bitterness about the law.”
Rochester coaches encountered exactly that phenomenon. Softball players told their coaches they didn’t want the baseball players to be barred from using lights and insisted that not having lights on their field didn’t bother them. “When girls are used to not having the same facilities as the boys, they come to expect that,” Chaudhry says. “When coaches hear their female athletes say, ‘We don’t care,’ it’s their job to educate the athletes about what the law requires. Otherwise, they’re training their athletes to grow up expecting less.”
The OCR’s clarification 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.