Title IX Advocates Will Now Focus on Enforcement

(WOMENSENEWS)–Supporters of women’s sports equity are using the boost from the recent federal announcement leaving Title IX intact to push for tougher enforcement of the landmark law.

The National Women’s Law Center, the Women’s Sports Foundation, the Feminist Majority and others exhaled a sigh of relief on July 11, when the U.S. Department of Education issued a "clarification" letter reaffirming Title IX policies. The law, passed in 1972, prohibits sex discrimination in federally funded education and has propelled three decades of growth in female sports programs in colleges and high schools.

More than 106 organizations ranging from the YWCA to the Association of American Colleges and Universities, to the National PTA, had called for protecting the law. Donna Lopiano, executive director of the New York-based Women’s Sports Foundation, credited the large, public, bipartisan outcry just before a presidential election with saving the law.

"It is now clear that Title IX is very popular law," Lopiano said in an interview, "and parents don’t want anybody saying their daughter is not going to be treated as well as their son."

Men’s Wrestling, Swimming Were Cut

In what some feared was an attack on Title IX began last year, apparently in response to the cutting of some men’s athletic programs such as wrestling and swimming. Critics claimed compliance with Title IX was forcing the cuts. The Bush administration appointed a 15-member commission–some skeptics called it a "stacked deck" of Title IX opponents–to review the law and propose changes.

In February, the commission released a report that recommended weakening the law in several ways. However, the report spawned a flurry of criticism after two members of the Secretary’s Commission on Opportunity in Athletics refused to sign onto the proposed changes to Title IX. Commissioners and Olympic gold medalists Donna de Varona and Julie Foudy issued a minority report expressing their discontent with the commission’s final proposals and recommended that Title IX "be preserved without change."

Education Secretary Rod Paige responded to these criticisms by saying that he would not consider certain controversial proposals to alter the landmark legislation and added that he would consider only those recommendations that had unanimous support of the commissioners.

Now, the Bush administration, announced it too supported the law and intended to ignore the commission’s report.

Title IX has helped increase women’s participation in sports by more than 400 in colleges and 800 percent in high schools, according to the Women’s Sports Foundation.

Janet P. Judge, an attorney in the Portland, Maine, office of Verrill and Dana, said in a phone interview she has worked some 10 years with schools on Title IX issues. While most past efforts at equity have focused on participation and scholarships, Judge said she expects the pressure to grow for schools to provide equal quality in such things as equipment, facilities and coaching; generally termed the "laundry list" by Title IX advocates.

Ample Room Left for Improvement

Judge, a former assistant athletic director at Harvard University, said Title IX "is alive and well, but colleges and high schools still have a long way to go."

The Foundation’s Lopiano agreed. "I think Title IX is safe at least through the next election," she said. "But that doesn’t mean the threat is over, because the key to enforcement is the Office for Civil Rights. Will it be aggressive in enforcing Title IX? Will its letters of findings be consistent with the way the law has been interpreted in the courts?"

Lopiano added that Title IX investigations "have been fraught with" conflict because the Office for Civil Right’s regional offices rule differently on the same fact pattern. She also said scarce funding in those offices mean that reviews are often only performed when a formal complaint is filed.

Leslie Annexstein, senior counsel at the National Women’s Law Center in Washington D.C., said in a phone interview that she, too, believes the "focus should now be on enforcement. That’s what’s really necessary now." She said the Office for Civil Rights has the authority and responsibility to initiate its own reviews without waiting for complaints. "They receive data from the colleges; the numbers are at their fingertips" to see who is complying, she said.

"It is also time to pay more attention to the high schools," she added. "That’s where the bulk of students are who participate in athletics." She said colleges have nearly 400,000 student athletes, about 151,000 of them female; while high schools have some 6.7 million student athletes, 2.8 million of whom are females. On behalf of high-schools students, her center has sued the Michigan High School Athletic Association in East Lansing, Mich., for forcing girls’ teams to play out of season so that boys’ teams could have the sports facilities. The case is pending in the U.S. Court of Appeals for the Sixth Circuit.

Educating Educators about Title IX

Annexstein said the government’s letter promised an extensive education campaign to help schools understand how they can comply with the law. She said her organization intends to monitor that education campaign, and perhaps even help implement it, so that "the resources of the department can go to stronger enforcement."

The letter also promised to "aggressively enforce Title IX standards, including implementing sanctions for institutions that do not comply." The department’s most severe sanction could include defunding an institution, but that has never been done, Annexstein said.

Susan Aspey, the Civil Rights Office’s deputy press secretary, declined, when asked, to elaborate on the possibility of stronger enforcement. She said in a phone interview that efforts were focusing on the public-information campaign to help schools understand how they can comply with Title IX through the law’s flexible three-prong test. The test checks an institution’s compliance by seeing if participation opportunities are "substantially proportionate" to enrollment, if the institution has a history and continuing practice of program expansion for women and if the institution is fully and effectively accommodating the interests and abilities of women.

She pointed out that the letter criticized the cutting or reducing of boys’ teams in order to comply, saying that nothing in Title IX requires such cuts. Calling the elimination of teams a "disfavored practice," the letter said the government seeks to work with schools to find remedies that do not cut teams.

Finally, the letter vowed to "ensure that its enforcement practices to do not vary from region to region."

Lopiano, among others, welcomed such promises. "Now that OCR has made a commitment to be more stringent with enforcement and do a better job educating schools on what Title IX requires, there will be something new to be measured," she said. Then Lopiano warned, "The bottom line is this: Title IX is safe through the election. There’s still room for mischief by OCR investigators. Vigilance is still necessary."

Sue Reisinger is a freelance journalist and lawyer in East Hampton, N.Y.