Title IX Fans Boo New Loophole in Sports Law

(WOMENSENEWS)–Title IX defenders are sending the latest "don’t mess with success" message to President Bush.

Their target: a Department of Education letter and model survey announcing new guidelines for collegiate compliance with Title IX, quietly sent out to colleges on March 17.

The Department called it a "letter of clarification." It said that a college or university could be deemed in compliance with Title IX if the new survey is e-mailed to current students to determine if their interests and abilities are being met. A non-response is considered a lack of interest.

Critics call that too weak a means of upholding a law that many say granted girls and women athletic equality.

Courts have ruled that colleges and universities are in compliance with Title IX if they meet any one of these three tests: participation opportunities are "substantially proportionate" to enrollment; the institution has a history and continuing practice of program expansion for women and the institution is fully and effectively accommodating the interests and abilities of women.

Legal Battles

In legal battles, some have argued that colleges and universities should be judged in compliance if they can demonstrate that they provide athletic opportunities to all female students who are interested in sports. The rebuttal by Title IX champions is that female high school students do not have the same encouragement to play sports as their male counterparts and thus an accurate measure of college women’s interests is difficult, if not impossible, to gather.

As to the specific idea of an e-mail survey, non-legal critics interviewed said that surveying the general female student population presently enrolled at a school does not accurately assess potential interest in a sport because female student athletes gravitate toward a school that has the programs that interest them.

"The pool of students you need to survey are not the ones who are currently on your campus, because if they were really interested in a sport, they wouldn’t come to your campus if you didn’t have the sport," said Carolyn Schlie Femovich, executive director of the Patriot League, a Division I athletic conference based in Center Valley, Pa., that includes schools in Pennsylvania, New York, Massachusetts, Washington, D.C., and Maryland.

Schlie Femovich says the Department of Education should have provided an opportunity for public comment on the clarification. "Had they done that, they may have learned or understood why this approach is not a practical one if you’re truly interested in determining interest in a particular sport or sports."

Donna Lopiano, executive director of the Women’s Sports Foundation, based in East Meadow, N.Y., founded in 1974 to promote opportunities for girls and women in sports, says the survey could let schools with weaker compliance off the hook.

"Institutions that are close to compliance would probably not use the survey. The institutions that are in financial straits and don’t want to add another sport for women have nothing to lose," Lopiano said. "Especially since e-mail responses are so poor and they’re allowed to count a non-response as a lack of interest."

Pelosi Joins Outcry

House Minority Leader Nancy Pelosi (D-CA) and other Democrats joined the outcry.

On June 22, the 33rd anniversary of Title IX, Pelosi, other politicians, athletes and representatives of various women’s organizations joined in Washington, D.C., to honor the anniversary and remember the bill’s co-sponsor, Congresswoman Patsy Mink of Hawaii, who died in 2002.

On the same day, Pelosi and 140 Democrats from the House and Senate sent a letter to President Bush pressing him to withdraw the clarification.

"We strongly believe that use of a survey alone, let alone an e-mail survey, cannot accurately determine student athletic interest or ability," the letter said.

In the letter, the politicians noted that while previous policies allowed the use of surveys in determining compliance, schools also had to look at input from coaches and administrators and interest in the surrounding schools and community sports leagues, which together provide a more comprehensive and accurate reflection of student interest.

"Under the new clarification, the department will allow schools to simply interpret a lack of response to the survey as evidence of lack of interest," Pelosi and others wrote.

Pre-Title IX Days

Before the passage of Title IX, female athletes rarely received college athletic scholarships. There were almost no full-time coaches for female teams. Funds were scarce for uniforms, equipment and transportation, and girls grew up knowing their options to compete in sports were limited.

But then came the 1972 federal mandate that any program receiving federal funds must provide equal opportunities for both females and males.

Since then female participation in sports has risen nine-fold in high schools, fivefold in college and producing magnificent teams such as University of Connecticut women’s basketball, Stanford women’s volleyball and University of Georgia track All-Americans.

Over the past 33 years, Title IX has survived many challenges. Those fought in public forums have all ultimately supported the law.

Most recently, the U.S. Supreme Court refused to consider the case of National Wrestling Coaches Association v. United States Department of Education, which alleged that Title IX had unfairly caused the elimination of numerous men’s college teams.

Public Comment Missing

Government officials say the survey does not represent a significant change and was only provided to help schools do a better job in assessing athletic interest on campus and perhaps add emerging sports, such as archery, badminton, bowling, rugby and team handball.

Chad Colby, deputy press secretary for the Department of Education, said that the use of surveys pre-dates March 17.

"This goes back prior to the Bush administration," Colby said. He said the purpose for this clarification was to standardize the survey because oftentimes schools sought to use a survey, but it was completely disorganized and ill prepared. "They need to be formatted in a way where you’re going to get reliable information."

David Black, deputy assistant secretary for enforcement at the Office of Civil Rights, said, "The model survey is not required to be used. It’s merely an additional tool to assess the interests and abilities of the students on campus."

Black added that the intent of the model survey is to evaluate adding sports not subtracting. "The purpose is not to be able to drop an existing sport," he said.

Commissioner Sees No Reaction Yet

Bob Oliver, commissioner of the Central Athletic Collegiate Conference, a Division II conference based in New Haven, Conn., comprised of 13 schools located in five states, said he has seen no reaction to the new survey to date.

"The schools in our conference really go with the intent of Title IX–providing females and under represented populations with opportunities," he said.

The Patriot League’s Schlie Femovich is less sanguine.

"I think our institutions have done an excellent job, but it is an ongoing challenge. It’s something that needs constant monitoring with respect to participation opportunities for women and obviously the number of sports that are offered for women vs. men."

Lois Elfman is a freelance writer who frequently covers women’s sports. She is the former editor in chief of Women’s Basketball and International Figure Skating magazines.