West of the Mississippi...

Teams are being added and dropped, and schools are conference hopping.
Not sure if it's the conference hopping that is encouraging institutions to the get their houses in order in terms of Title IX compliance, but it is certainly having that effect.
The University of Montana has slightly-more-than tentative plans to add women's softball to their roster of intercollegiate sports. The state of Montana has no DI softball, which isn't especially surprising given the limitations the weather puts on spring sports, but recent survey data show that softball is the sport undergraduate women would like to see added. Though Montana administrators maintain that they didn't think they "were close to being out of compliance" they knew that they couldn't keep administering the annual interest survey and not do anything. (Not sure why they held that belief in the first place. Simply collecting data does not make one compliant.) Not sure if the NCAA held similar beliefs about Montana's compliance. In the university's last reaccreditation administrators were apparently told that adding another women's sport would be "the right thing to do." Montana is able, it seems, to read between the lines. And its plans to move to the Big Sky Conference likely pushed forward the plan for softball. The Big Sky needs one more softball-playing school in order to hold a conference tournament. But softball is still a ways off, at least three years according to the athletic director. The program is estimated to cost about half a million dollars annually so funds need to be raised, a coach hired, and players recruited.
A different conference hop is forcing another school to do the drop/add shuffle. University of Nebraska-Omaha, a DII school (except for men's hockey), is making the move to DI. It has been invited to the Summit League and given the NCAA's lifting of the ban on division hopping that will happen in June, and that conferences hold the power to invite, UNO has decided to make the leap, something they apparently have been considering for a while now. Not knowing when another such opportunity will come along, the university is making sure everything is in order for the 2012 move.
But unfortunately football and wrestling will not be coming along. The university cited the immense costs of football and the inability to bring wrestling up to DI levels without a large amount of cash as the reason for the cuts. Good news though for a couple of the so-called men's minor sports: UNO will be adding men's golf and soccer.

Grossman Explains and Analyzes Repeal of Model Survey Policy

In her regular column at Findlaw.com, Professor Joanna Grossman provides an easy-to-understand-but-nevertheless-thorough analysis of the Department of Education's recent decision to repeal the Model Survey policy, including what the policy's repeal may signal, politically.

She concludes:

This reversal of Title IX policy, while narrow, is an important sign of the Obama Administration's support for civil rights. It follows an announcement by the current Secretary of Education, Arne Duncan, that the agency will open investigations in 32 school districts and will look closely to see whether educational entities at all levels are complying with civil rights laws such as Title IX.

Overall, Title IX's future looks bright, but areas for progress yet remain. Women still receive disproportionately fewer playing opportunities, fewer scholarships, coaches who are paid less, and lower budgets, despite more than a decade of active Title IX enforcement and litigation. This policy reversal is a hopeful sign that we can expect further progress – instead of retrenchment – in the crucial area of ensuring that female and male athletes are given equal opportunity.

The round-up on the re-clarification

I have to say I was a little surprised by all attention yesterday's announcement that the Obama administration would be repealing the 2005 policy interpretation allowing schools to rely solely on email surveys to show compliance with prong three received. Much more mainstream press, of course, than the initial "clarification" by George W. Bush's administration. I remain a little worried by how this announcement might play out on the larger political stage, but the press I have seen and heard thus far has been largely positive.
Here is a round-up of coverage:
From McClatchy Newspapers was coverage that focused on George Washington University where Joe Biden made the announcement. There were quotes from a women's studies professor about gender bias in measuring interest. Also interviewed was Eleanor Smeal of the Feminist Majority Foundation who said that the survey method resulted in schools shutting down some women's programs. Not sure which programs these were. We never heard of such a situation and given that when a school cuts a viable women's program it is hard to argue that there is no interest in that sport. It is possible that the survey method prevented that addition of new women's sports.
The Chronicle of Higher Education had a post about Joe Biden's support of Title IX and women's sports generally (Biden was at the women's Final Four a few weeks ago). Biden was, apparently, quite effusive in his praise of the athletic women in his life.
WaPo briefly noted the opposition to the announcement by the College Sports Council who, according to a spokesperson, feel this is a "step backwards in terms of fairness."
More thoughts on the repeal from CSC were reported in Business Week which also printed comments from NY representative Louise Slaughter who is part of the push behind legislation to mandate reporting on gender equity in high school athletics departments.
From Christine Brennan, quotes from Marcia Greenberger of the National Women's Law Center and from Julie Foudy who was part of the committee then-President Bush assembled to look at Title IX. [Foudy and fellow committee member Donna de Varona filed their own minority report to counter the recommendations from the committee that would have further weakened Title IX if they had been implemented.] Brennan also includes, as many columns and articles have, the piece of the speech from Biden in which he says "what we're doing here today is ensuring equal opportunity in athletics, and allowing women to realize their potential--so this nation can realize its potential."
Not to pick nits or diminish the impact of this good news, but "allowing women" is a little problematic (remember Nike's "if you let me play" campaign??) and the nationalist rhetoric though brief was still a little irksome.
A video of (pieces of) Biden's announcement can be found at CNN.com. You can also see the gathering of women behind him which included Girl Scouts (not sure what Girls Scouts have to do with Title IX but...), members of the US Women's National Hockey team, and Joy Cheek of Duke who was recently drafted into the WNBA and introduced Biden, for whom she served as an intern.

Stay tuned for a re-clarification

As Erin mentioned yesterday, the Department of Education is planning an announcement regarding compliance with prong three. Today Vice-President Biden will be the bearer of the news that the 2005 Office of Civil Rights "clarification" of the interests and abilities prong that allowed schools to use email surveys alone to gauge interest will no longer be acceptable. As the NYT article points out, and as we have noticed here ourselves, few schools have taken the interest-survey only approach, in part because of the opposition to the policy by the NCAA. Given the uncertainty regarding the future leadership of the NCAA, I myself am reassured by the timing of this announcement.
The use of surveys will continue, but they will not be allowed to be the sole factor in assessing interest and non-responses will not automatically be read as lack of interest.
The official announcement will be made this afternoon, but the news has already generated national headlines with stories in the as-linked-above NYT article, the AP, and a snippet on NPR's Morning Edition.
If there is further information after this afternoon's announcement we will be sure to report on it.

Government, Lawyers Targeting Title IX Violations

A reporter at the Chronicle of High Education interviewed OCR Chief Russlyn Ali about OCR's enforcement plans for Title IX. Ali says that the agency is stepping up enforcement of Title IX in the next several months. It remains to be seen what this means, but I hope it means that the agency plans to be more proactive addressing violations and responsive to complaints that get filed by others. Moreover, according to Ali, the agency also plans to issue guidance about the 2005 Clarification, the policy that allows colleges to comply with prong three with the results of an interest survey. (For a recent post about the controversial policy, see here.)

Meanwhile, the same article reports that private enforcement is also getting a boost from lawyers Nancy Hogshead-Makar and Kristen Galles, who are channeling their expertise on Title IX into a new organization called the Legal Institute for Gender Equity in Athletics. Their organization will provide support to lawyers who are bringing cases against institutions in violation of Title IX, offering sample pleadings and other litigation resources, as well as victims looking a referral. Just judging by the number of inquiries this blog receives from lawyers and victims seeking assistance, Galles and Hogshead-Makar are stepping up to fill a real need. We look forward to blogging about the project more as it gets off the ground.

Civil Rights Commission Endorses Model Survey

In a disappointing but not exactly surprising move, the U.S. Commission on Civil Rights has issued a report that endorsing the practice of colleges and universities to measure compliance with prong three by relying on the Model Survey method that the Department of Education created in 2005. Prong 3 measures whether schools fully and effectively accommodate the interests and abilities of the underrepresented sex; it is a less stringent standard than the alternative prongs of (1) statistical proportionality or (2) history and continuing practice of expanding opportunities for the underrepresented sex. The Model Survey allows schools to survey students of the underrepresented sex at a college or university to see whether there is unmet interest in athletic opportunities that students would have the skill and talent to undertake. Unless the survey shows unmet interest and ability in numbers sufficiently large to field a team, the existing athletic opportunities are deemed to comply with Title IX, even if women are severely underrepresented.

Critics--myself among them--argued that the Model Survey approach perpetuates existing disparities in athletic opportunities. For one thing, the Model Survey requires only women (or whichever is the underrepresented sex, but it's nearly always women) to prove their interest by enrolling first at a school that doesn't even offer the opportunity they are interested and able to undertake. Men do not have that burden, and are advantage by the likely reality that coaches and athletic administrators are actively recruiting interested and talented male athletes to the student body. Moreover interest and ability are constructed, in part, by the opportunities that are made available. When there are no opportunities, interest and ability remain stagnant. The Model Survey creates a vicious cycle, then, because the absence of interest and ability means the absence of opportunity.

It's not clear whether the U.S. Commission on Civil Rights endorsement of the Model Survey approach. The Commission is an unusual agency in that it does not have enforcement power, only the power to make recommendations and reports. For another, it is regarded as a body that is motivated by political considerations more so than independent, objective expertise. No surprisingly, the five commissioners (of 8) who endorsed the Model Survey recommendation (one of whom was technically an absention) were all appointed by President Bush. Another reason that the Commission's report is of questionable influence is that the Model Survey has a strong opponent in the NCAA, which has urged its member institutions not to rely on he Model Survey, for the reasons noted above. Like the Commission, the NCAA does not have enforcement authority with respect to Title IX. But it arguably has more name recognition and persuasive authority than this rather obscure commission.

Texas School District Under Investigation

The Grapevine-Colleyville Independent School District in Texas is currently being investigated by the Office for Civil Rights, which received allegations that that district has discriminated against female athletes by offering fewer opportunities and by providing girls teams with inferior facilities, specifically with regards to softball. According to this article, more girls' teams than boys' temas have mandatory cuts, and a recently survey revealed that among female nonathletes in the district, 65% cited lack of opportunity as the reason why they did not participate in sports. If the GCISD relies on prong three to demonstrate compliance (as most schools do), this evidence of unmet interest would certainly call that compliance into question.

Ohio school district provides good model

In Ohio, the Middletown School District undertook a voluntary study of equity in athletics and found some things to fix. (I always question how "voluntary" some of these studies are, but it appears that administrators just wanted to get a sense of the state of things.)
In addition to examining facilities, the study look at sports offerings and participation. There was the typical number-crunching of participation opportunities by gender and a survey of female students to find out what they wanted to play. Those two components have lead to the decision to add, district-wide, a sport for girls. Lacrosse ad gymnastics are both being considered.
Additionally, the study encourages more opportunities at the elementary school level to cultivate interest early on.

WIU using survey data

Cited for not providing opportunities to meet the needs and interests of its female students and not providing equitable amounts of publicity to its current male and female teams, Western Illinois University will be submitting evidence to explain these alleged disparities to the Office of Civil Rights next month. The report is required as part of the resolution agreement between OCR and WIU that resulted after a complaint was filed with OCR. It doesn't sound like much of a resolution really. After all WIU is not admitting any wrongdoing. It seems that the submission of evidence is normally part of an investigation that might lead to some kind of resolution agreement. One of the interesting aspects of the report, though, is that WIU will be using recent survey data to support its claim that it is meeting the needs and interests of its female students. (Though for some reason this data will not be submitted until April of 2009.) The survey, according to above link, asked students about their interest in sports the NCAA has deemed "core" or "emerging." We have noted the issues with surveys that ask current students about their interests in sports that do not exist at their institution--along with other problems in assessing interest via a survey. No mention of how the survey was administered or what the return rate was. According to this article, though, WIU does such surveys every few years.
WIU maintains that it is in compliance with Title IX. The evidence of this is due to OCR by November 1.

Elsewhere in the blogosphere

David Cohen posts at Feminist Law Profs about Cal Poly's efforts to evade Title IX by sponsoring men-only engineering classes in Saudi Arabia.

-and-

At Womenstake.org, Neena Chaudhry of the National Women's Law Coalition reflects on the three-year anniversary of the Department of Education's 2005 Clarification, which allows schools with grossly inequitable particpation opportunities to satisfy Title IX using the results of a web-based survey of female students' interests and abilities.

College Sports Council Cites Lack of Proportionality at Historically Black Colleges

The College Sports Council (no fan of Title IX) earlier this week released a study about Title IX compliance at historically black colleges and universities. The results: 73 out of 75 of HBCUs fail the proportionality prong of the three-part test. This means that for nearly all HBCUs, the percentage of athletic opportunities for women is lower, in some cases much much lower, than the percentage of women on campus. According to CSC President Eric Pearson, "The purpose of this study is to show that schools like the HBCUs that want to attract more male students run into a virtual roadblock when it comes to complying with Title IXs proportionality standard...The CSC calls on the NCAA to support HBCUs use of surveys to comply with Title IX. HBCUs need the flexibility that surveys offer, if they want to use sports to increase male enrollment."

First, I think that some context is required to better frame the story of proportionality problem among HBCUs. According to a recent Women's Sports Foundation study, 87% of colleges and universities are not within three percentage points of proportionality. So while the nonproportionality rate among HBCUs is quite high (97%), it is important to remember that the vast majority of all colleges and universities are also out of compliance with that prong.

Next, I think CSC overstates the consequences of failing to comply with the proportionality prong. Proportionality is not the only way to satisfy Title IX. Most schools that don't satsify this prong (which is to say, most schools) are in compliance or claim they are in compliance under prong three: effectively accommodating the interests and abilities of the underrepresented sex. In the absence of a decision by a school to (a) cut a women's team or (b) turn down a request to add a viable women's team, there is very little reason to doubt such claims.

So why is the CSC arguing that HBCUs should have the NCAA's blessing to use interest surveys? Without getting in to the controversial aspects of the interest survey methodology that OCR endorsed in 2005 (WSF does a fine job of that here), I'll just say that an advantage of using the interest survey is, from a school's perspective, that it provides concrete, statistical evidence of compliance with prong three. This evidences give schools the confidence to add more sports for men -- even when those additions compound already existing inequities in the distribution of athletic opportunities. The CSC wants the NCAA to bless a practice that would (lawfully, to be sure) result in HBCUs making even fewer athletic opportunities available to female students.

It seems to me that this argument exploits HBCUs for their tendency to invoke support, thus strategically pitting race against sex in CSC's larger project of challenging proportionality and Title IX. The subtext of its press release is that if you are for HBCUs (i.e., if you are not a racist) you must be against Title IX. But the CSC's argument that HBCUs should have the NCAA's support in eluding proportionality trades in both racial and sexist stereotypes. Most obviously, the argument that HBCUs in particular need to offer sports to attract male students suggests that the only way to get black men to college is to offer intercollegiate sports. It also assumes that prospective female HBCU students are uninterested in, or undeserving of, athletic opportunities in comparable ratios to their male counterparts. HBCUs should be working just as hard as other schools to eliminate gender disparities in their athletic departments. The NCAA should continue to encourage all schools, including HBCUs, to forgo interest surveys and strive for gender equity.

Survey says? No baseball

In Michigan, the Gladstone Area Schools will not be adding baseball any time soon. Though there is interest in the sport, starting a program would further exacerbate the Title IX problems the district is having. They have not achieved proportionality which would mean adding baseball would mandate adding a girls' sport which, officials say, is not in the budget. They cannot cite compliance with prong 2 because in the last decade gymnastics has been cut and only competitive cheer added.
But in the hopes of complying with prong 3, interests and abilities, the schools surveyed their high school students. The results showed that the boys definitely want to play baseball but that girls are interested in, among other things, gymnastics, bowling, swimming, and soccer.
So no baseball. But if I was a high school girl in the Gladstone Area Schools interested in playing one of those sports I would take that survey data and demand the creation of a new program. They aren't proportional, aren't expanding the program, aren't meeting interests and abilities and there is a survey* that says girls want to play sports. The district may have just surveyed themselves into a corner.

* I am not advocating the use of surveys in assessing compliance with prong three. I am aware of the many faults of such "evidence."

Editorial hits the mark

We come across a lot of editorials about Title IX written by students in their college papers, most of which cite "discrimination" against men when teams are cut or suggest that Title IX is good in theory but not in how it is applied.

But this column in Purdue's student paper, The Exponent, illustrates that some people really do get it; that the major points Title IX advocates are making about poor budget decisions and institutional priorities as the primary causes of cuts to men's teams are not falling on deaf ears. Writer Adam Poor makes these same points, noting that Purdue has not had to cut any sports because of "controlled growth" and keeping the number of varsity teams at 18. [It also should be noted, however, that Purdue's percentage of female undergrads is only 40 percent which makes it much easier to comply with the proportionality prong than schools where the percentage of male undergrads is around 40. Why a school that is known for its engineering and technology programs has such a low percentage of female undergrads is another Title IX discussion for another time.]

Additionally, Poor goes on to criticize OCR's 2005 clarification that allows email surveys to gauge student body interest saying that it is a poor measure of interest to ask the current student body what they want for varsity sports given that those interested in sports the university does not offer have likely gone elsewhere.

My only concern is his suggestion that more schools try to go with prong two, history and practice of expanding opportunities, and that OCR should offer a little wiggle room about just how long this actually takes saying that even if "progress is slow" a school should not be found noncompliant. Well, given that 2007 does mark the 35th anniversary of Title IX and finds so many schools not compliant I am not so ready to perpetuate this slow progress standard.

Even so, Poor has shown that he understands the spirit and correct application of Title IX. Many of us have heard, sometimes out of our own mouths, complaints about students--both men and women--who don't know what Title IX is, or don't think we need it anymore, or find it unfair to men. It's heartening to know some students are getting it. I'd give Adam Poor an A.