Why Title IX should (and already does) apply to high schools

As we noted yesterday, a lawsuit against the Department of Education has been filed claiming that the application of the three-prong test to high schools violates the Equal Protection Clause of the Constitution. Here's a little more on that. And we are sure there is much more to come.
A significant amount of attention has been paid of late to the spate of complaints filed against school districts alleging disparities in the sport opportunities high school provide to their male and female pupils. Recap: NWLC's 12 complaints last fall, and the more recent ones targeting a majority of districts in Oregon, Washington, and Idaho.

Vocal opponents of such attempts to give more girls the opportunity to play sports--under the guise of "personal choice" and "reverse discrimination"--the College Sports Council, and others, have spoken out against what they believe is the misapplication of the three-prong test to high school athletics. The lawsuit they filed yesterday in federal court attempting to get the judiciary on their side was a long time in the works, I would imagine, but comes now at a time when these issues are very much in the spotlight. An additional reveal was, as we mentioned in yesterday's post, the group's new name: American Sports Council. This allows the former CSC to, I guess, legitimately turn its attention to high schools. And fighting discrimination against boys does reflect the American way.

ASC, when it was CSC, attempted this same move--to get rid of the three prong test--except with college sports. It didn't work. Courts have consistently held that all of Title IX's provisions apply to high schools (and other entities) as well. And, as Erin noted yesterday, we predict the outcome will be the same.

As well it should be. In fact, I argue that the three-prong test is even more applicable--or easily and equally--applicable in the high school context. Here's why.

First, let's address some misconceptions. Opponents of the three-prong test--specifically the proportionality test--say that applying the test to high schools is going to result in a million boys being denied sporting opportunities. They say that budget-strapped schools will, of course, have to cut sports for boys. But proportionality is NOT required. ASC keeps invoking the "safe harbor" rationale saying that this phrase--which came in a 1996 clarification letter from the Department of Education--means that schools will, of course, attempt compliance with that prong in order to avoid lawsuits. (You can see a You Tube video from the group about the filing.)
Let's clear some things up. Proportionality is a safe harbor because it is numbers based. Numbers don't lie. Except when they do. Like when schools manipulate rosters in order to make it seem like they are offering opportunities to girls and women--when they are not. I don't think this is the Department of Ed's problem. This is laziness and utter disregard for a gender equity law--passed almost 40 years ago--that we still cannot seem to adequately enforce.
Second, if these opponents truly believed that girls were less interested in playing sports then, I believe, they would be making greater efforts to prove it. Develop the methods to sufficiently measure interest and let's see. Opponents say that this opens up schools to lawsuits. Well, schools aren't doing a great job avoiding lawsuits right now as they manipulate rosters and continue to deny female athletes equitable treatment. A good faith effort goes a long way with me--and others like me. But we don't see it happening. We see avoidance of the issues--at all costs--even millions of dollars (as a result of jury awards and settlements).
So why are high schools arguably even better suited to the three-prong test?
Well, the gender division in most high schools (and I am speaking largely about public schools here) is close to 50/50. In other words--it shouldn't be that hard to offer equal opportunities. High school sports are often just a progression of student-athletes' careers from youth sports in a way that the transition from high school to college is not as natural or expected. It's hard to believe that the numbers aren't there given the growth in youth sports.
Second, the valuing of participation is somewhat more emphasized in high school sports. Because high school sports are not expected to be big revenue generators in the way intercollegiate sports are, the philosophy of sport as an educational and growth experience is more at the forefront and less easily disregarded and lost amid large and complicated athletic department budgets. And so, of course, opportunities should be equitably distributed when we're talking about an educational endeavor.
They don't have to worry about expenditures such as recruiting and scholarships, either.
I have read several pieces that complain that we feminists are lawsuit happy and attempting to dismantle boys' sports with these recent filings. First, these are complaints--not lawsuits.
There is no desire to kick boys out of sports. But again, Title IX has been around for four decades. What have schools been doing? Advocates for women's sports get villainized because we expect that schools and the government actually follow and enforce this law. These complaints serve to both put high schools on notice that they cannot continue to be ignorant of Title IX. And they're a wake-up call to OCR which has been somewhat complacent in its enforcement at the high school level.
Is there ever going to be a good time for us to request that girls be given what they deserve? The economy was pretty decent in 1996, as I recall. If schools had truly believed that proportionality was the safe harbor of Title IX, they would have had the means to implement it then. And prior to 1972? Well there were boon periods then too. Yet there was no widespread movement to add sports for women. Hard to argue that we don't need Title IX.
Progress is neither innate nor organic. Equality does not just manifest itself because years pass.

Lawsuit Challenges Title IX's Application to High Schools

The American Sports Council (formerly the College Sports Council) has sued the Department of Education in federal court, arguing that the enforcement of Title IX's three-prong test against high schools violations the U.S. Constitution's Equal Protection Clause. College Sports Council and other anti-Title IX organizations have challenged Title IX's constitutionality in the past, though never successfully. I predict that the court deciding this case will apply the same interpretation as those earlier decisions holding it was not unconstitutional for Title IX to offer a proportionality test as one of three options for compliance . Though those earlier decisions were all in the context of disputes about college sports, there is nothing about applying those arguments to the high school context that warrants a different result.

For more coverage, see this thorough post on Education Week's Schooled in Sports blog.

78 Idaho School Districts Named in Title IX Complaint

First Washington, then Oregon, now Idaho. The Department of Education's Office for Civil Rights recently received a complaint (pdf here -- it's 600 pages) citing 100 high schools in 78 of the 115 school districts in the state, charging them with violating Title IX for failing to provide equitable athletic opportunities to female students. This is the third northwestern state in recent months in which OCR has been asked to look into Title IX violations at dozens of school districts statewide. Like the others, the complaint is based on data mined from OCR's most recent Civil Rights Data Collection report, which provides evidence of disparities in participation rates as well as evidence of school districts "padding" their participation rates by including activities (namely, sideline cheerleading and dance) that are not comparable to varsity athletics in terms of their competitive schedule. From these data, the complaint alleges violations of prong one's proportionality standard. It then uses OCR data over time to cite school districts with declining opportunities for girls, suggesting violations of prong two's requirement of program expansion for the underrepresented sex. Finally, the complaint sites examples of school districts failing to offer sports that are sanctioned by the state athletic association as evidence of unmet interest, which would violate prong three.

The press has not reported on the person filing the complaint, as government regulations protect anonymity of complainants. However, unlike lawsuits filed in federal court, complaints to OCR may be raised by anyone.

Is Montana next?

The three-prong breakdown

At the NCAA Gender Equity Forum, which Erin attended earlier this week, there was a discussion about compliance in the area of equitable opportunities. This area is--arguably--the most well-known and, perhaps ironically, the most misunderstood.
Schools can measure their compliance using one of three tests--hence the three-prong test. Often the three-prong test is presumed to be the only measure of Title IX compliance. It is not, as is exemplified in our many posts about facilities, access to coaches, provision of quality competitive opportunities and equipment, etc.
A session at the conference addressed the three-prong test and the ability and difficulties in complying. The happenings at the panel were reported by Inside Higher Ed. It seemed like a good discussion about whether the prongs are viable any more--and if so, which ones and how schools can demonstrate compliance. There was certainly frustration among various audience members who were athletics administrators about the challenges each pring presents. The session was lead by Jacqueline Michaels of OCR who seemed to do a very good job with questions from the audience and in explaining the intricacies of each prong--especially the confusion over prong three given the changes and clarifications this specific test has seen over the last 6 years.
I highly recommend reading this short piece to get a better understanding of the three prongs and how they are enforced.

NCAA Gender Equity Issues Forum

Greetings from Bethesda, where I'm attending the NCAA's Gender Equity Issues Conference. This is a great annual event that brings together gender equity experts and athletic department staff from colleges around the country to talk about Title IX and gender equity issues. Yesterday I had the pleasure of participating on a panel about how to count participation opportunities for the purposes of demonstrating proportionality. My co-presenter Tim O'Brien and I used the court's decision in the Quinnipiac case as the starting point for a discussion about the importance about looking past the numbers and assessing whether those numbers reflect actual, meaningful athletic opportunities. We also talked about some of the egregious examples of reporting violations and roster manipulation that the New York Times wrote about last week. We definitely addressed those issues as well. David Moltz covered the presentation for Inside Higher Education, so even if you couldn't attend, you can read all about it!

Other panels have addressed such hot topics as pay equity, prongs two and three compliance, diversity and inclusion, retaliation, and emerging sports. We also had a brilliant keynote address by Mariah Burton Nelson on the importance of implementing and enforcing policies against sexual abuse by coaches. And I had the pleasure of learning about the Athlete Ally initiative to eliminate the use of sexist and homophobic language in sport, and meeting its founder, a former student-athlete and All-American wrestler, Hudson Taylor. All in all it's been a great conference!

Universities Cheat to Show Title IX Compliance, NYT Reports

When the Quinnipiac litigation last year exposed certain instances of roster manipulation -- adding male players and cutting female player after the reporting deadline -- I kept hearing people ask "how common is this?" My gut was that Quinnipiac was not the only school to engage in roster shenanigans that make their women's teams appear larger and their men's teams smaller, in efforts to create the illusion of compliance with the proportionality prong of Title IX. But I didn't know which other schools were doing it nor the extent of the problem.

After reading today's groundbreaking story in the New York Times, I now know, cheating is far more prevalent and even more egregious than the Quinnipiac example. The University of South Florida, for example, included many athletes from other sports on its 71-member women's cross-country team roster-- athletes who never competed in meets, practiced, or some case even knew that they were listed as members of the team. Other schools invite walk-on women to "join" the team, but tell them not to bother showing up to games and practices even though they are listed on the roster. Still others -- including the national champions Texas A&M women's basketball team -- count the women's team's male practice players as opportunities in women's sports. All of these examples are meant to create the illusion, on paper, of gender equity.

Title IX requires that universities offer a balance of athletic opportunities that reflects the percentage of men and women in the student body, or alternatively, to at least offer enough athletic opportunities to meet the interests and abilities of the underrepresented sex. Title IX will also give credit for trying, as another compliance option is to show continuing progress of expanding opportunities for the underrepresented sex. But rather than putting in the real effort to show continuing progress, or to ensure that there is no unmet interest, universities are manipulating the data to give the appearance of compliance under the first prong. And lest anyone be concerned that these are "innocent" universities "forced" into this situation because they can't afford to add real opportunities for women, let's consider whether this same ostensible financial hardship applies when it comes to adding men's sports. Apparently, it does not. According to the article, South Florida's egregious roster manipulation was a response to its decision in 1997 to add 100 new opportunities for men, in the sport of football. Rather than investing in a leveling-up approach, South Florida took an existing imbalance and made it worse by adding opportunities -- expensive ones -- for the overrepresented sex. So of course there's less money now to add opportunities for women. But that's never a justification cheating, and it rings particular hollow when the university's own decisions to create or exacerbate the disparity is at the root of its compliance problem.

In sum, the NYT is the bearer of bad news when it exposes the extent and scope of universities' false reports of gender equity. I wish that we could believe universities who report gender equity in athletics. But at least the good news is that after this public exposure, investigators, complainants, plaintiffs, bloggers, and other watchdogs are less likely to be duped by false numbers going forward. We'll dig below the surface of universities' reported data and demand stronger evidence in support of universities' claims to gender equity. When they realize that their false numbers will not protect them, maybe they'll start reporting the real ones.

Washington School District Enters Voluntary Agreement to Comply with Title IX

The Office for Civil Rights accepted a voluntary agreement from Federal Way School District, one of the 26 school districts in Washington State named in Title IX complaint recently accepted by the agency. The complaint alleged that a participation gap of -12.1 percentage points exists between the percent of Federal Way high school students who are female and the percent of athletic opportunities they receive -- the equivalent of 76 actual opportunities -- and that this disparity has been widening, not shrinking, in recent years. A somewhat smaller 8 percentage point gap is reported in the press.

Federal Way has agreed to conduct immediately a detailed analysis of its compliance with the athletics' regulation under each of its three prongs. It also agreed to add new athletic opportunities for girls in the coming year, if the results of its analysis reveal compliance with neither.

On the one hand, it is frustrating to see a school district enter into a formal agreement to do exactly what the law already requires it to do, comply with Title IX under one of the three prongs. But on the other hand, the complaint process has effectively put Federal Way's feet to the fire (along with a couple dozen other districts in the state) to come into compliance in the coming year and under the monitoring of OCR, which will review the districts' analysis and decisionmaking at multiple steps in the process. While the voluntary agreement does not produce a finding of noncompliance or related penalties, it is the mechanism that will most swiftly and fully end the disparity in opportunities that exists for girls in Washington state.

Liberty explains

The good news is that Liberty University, which dropped its men's wrestling program from the varsity roster this week, is aware that they currently meet the criteria for compliance with prong two. But they believe that in three to five years this will not be enough. This is despite their plan to continue to decrease roster spots in men's sports and increase spots in women's sports. Compliance with prong two remains somewhat subjective. How many and how frequently a school has to add opportunities is not neatly outlined. And while I applaud Liberty's forward-thinking--many schools get caught having to make lesser-of-the-evil type decisions because they have not thought ahead--it still seems somewhat curious that Liberty would make this cut now. Liberty officials argue that wrestling was the sport to go because it had a large roster (38) and because it was the only sport not in the Big South Conference--it actually had no conference affiliation. I still have not run the numbers myself, in part because the most recent women's sport addition will not be present in the latest set of data. But according to Liberty, their undergrad population is 52/48 women to men. And even with the addition of the three sports they are still not achieving proportionality! Makes me wonder what things looked like when wrestling was added in 2006 (and earlier).

Fourth Circuit Affirms JMU Cuts

Equity in Athletics has been battling in court James Madison University's decision to cut 10 teams since the cuts were announced in 2006. On behalf of the affected athletes and other interested parties, the organizations sued the University and the Department of Education, challenging both the cuts and the Department of Education's policy interpretation that provides the three part test for measuring equity in athletic opportunities. After failing to attain a preliminary injunction against the cuts, EIA continued to pursue permanent relief. Last year, a federal court in Virginia rejected EIA's claims, and yesterday, a three-judge panel of the Fourth Circuit Court of Appeals affirmed.

Though the appellate court agreed that EIA had standing to bring its case, the rest of the decision rejected EIA's arguments in their entirety. In particular, the court rejected EIA's argument that the three-part test is an unauthorized use a disparate impact standard of discrimination. For one thing, the court cited specific language in Title IX that allows regulators to consider statistics when defining and measuring equity. ("Provided, That this subsection shall not be construed to prevent the consideration in any hearing or proceeding under this chapter of statistical evidence tending to show that such an imbalance exists with respect to the participation in, or receipt of the benefits of, any such program or activity by the members of one sex." 20 U.S.C. § 1681(b).) For another, the court said EIA "misconstrues" the three-part test as a mandatory disparate impact standard. Consistent with every other court that has considered this question, the court recognized that the three-part test does not mandate proportionality. Rather, it allows evidence of proportionality create a presumption of compliance. Institutions with disproportional athletic opportunities can still show compliance under either of the alternative prongs.

The court then went on to affirm the district court's rejection of EIA's other claims, affirming the constitutionality and procedural validity of the three-part test as well as the constitutionality of JMU's decision to cut more men's teams than women's teams -- a decision that affected more male athletes, but produced a result that "ensure[d] that the student body as a whole was “substantially equally” represented in the availability of opportunities for athletic participation." Relatedly, the court "unhesitatingly [made] clear " its rejection of the idea that athletic opportunities should be distributed in proportion to percentages of male and female students who are interested in athletics, citing the First Circuit's oft-quoted language that "[i]nterest and ability rarely develop in a vacuum; they evolve as a function of opportunity and experience."

According to a press release, EIA plans to appeal, either to the entire Fourth Circuit en banc (which can, in rare cases, reverse a three-judge panel) or to the Supreme Court. So we are not yet done blogging about this case!

Decision is: Equity In Athletics, Inc. v. Department Of Educ., 2011 WL 790055 (4th Cir.(Va.) Mar 08, 2011).

DU decision backlash

There have been a lot of articles and editorials and articles that editorialize in the wake of DU's decision to end its men's running program.
I thought this one was especially good, from a female alum and current track coach. She raises the point I neglected to make in my initial post which is if DU is adding women's golf in the fall why it it so worried about achieving proportionality now. Ms. Ambrogi appears to be right. By adding women's golf it would seem that DU is complying (temporarily anyway) with prong two by expanding opportunities. Not sure what their previous history has been, but the addition of golf would seem to do for now...unless DU has plans to cut a women's team some time soon. In that case they would have to have their proportionality ducks (or hens in this case) in a row.
This is just a very curious case, and I have a feeling we are not hearing the whole truth(s).