Title IX's Spirit is Alive

Throughout the first and evolving documents to implement Title IX of the 1972 Education Amendments, it is clear that the spirit and intent of Title IX is this: assess and accommodate the interests of males and females equally in education.

Almost immediately the focus moved from curriculum to extracurricular programs and, overwhelmingly, to just one such program: competitive athletics.

And as the years went by, the emphasis shifted from assessment and accommodation to mandating equal numbers of participants and creating programs to make that happen.

The result of balancing participation numbers and dollars in intercollegiate athletics was the elimination of many so-called "Olympic" sports, especially such programs for men, even when they volunteered to pay for the programs themselves. First the "walk-ons" were barred, and then many of the programs were dropped altogether.

The result in high school sports has not been so much the elimination of programs but the reluctance of schools to add new programs that boys clearly wanted and would well support.

Such enforcement failed the spirit and intent of Title IX.

It also fails common sense. Three to five women's professional sports leagues in the United States – including volleyball and softball – have folded since being founded in the 1990s, and the professional soccer and basketball leagues have nearly done so. They wallow in general spectator apathy and red ink.

Yet the Title IX enforcers told colleges and schools to ignore consumer interest and free market principles, requiring that as much money be spent on female athletics as on male programs.

Colleges and schools burdened by reductions in government funding to education generally found they were cut no slack from the government in funding women's and girls athletics to artificial and unsupported levels.
But recently there has been a gentle breeze of refreshing change.

In July, the U.S. Office for Civil Rights issued a letter which results from the work of the Commission on Opportunity in Athletics established by the U.S. Department of Education in response to criticism of Title IX enforcement, especially from the National Intercollegiate Wrestling Coaches Association. The Commission met during the last half of 2002 and issued its findings early in 2003.

The letter states in part: "If a school does not satisfy the 'substantial proportionality' prong, it would still satisfy the three-prong test if it maintains a history and continuing practice of program expansion for the underrepresented sex, or if 'the interests and abilities of the members of [the underrepresented] sex have been fully and effectively accommodated by the present program.' Each of the three prongs is thus a valid, alternative way for schools to comply with Title IX.

"The transmittal letter accompanying the 1996 Clarification issued by the Department described only one of these three separate prongs - substantial proportionality – as a 'safe harbor' for Title IX compliance. This led many schools to believe, erroneously, that they must take measures to ensure strict proportionality between the sexes. In fact, each of the three prongs of the test is an equally sufficient means of complying with Title IX, and no one prong is favored."

The point is this. What we have been saying for years, and what we said in our written statement to the Commission last fall, is that the original spirit and intent of Title IX is to listen to the students and to accommodate their interests and abilities.

The third prong of the three-prong test is the most valid, the most in tune with the spirit of Title IX. The proportionality prong is no longer the safe harbor, no longer more valid or more usable than the other two prongs.

What this means in practical application is this. If you have interest by boys in lacrosse but there is no interest sufficient to start any new girls sports, you can start the boys lacrosse program without waiting. The likely result is that starting boys lacrosse will ignite interest in girls lacrosse. A win-win result: accommodate boys – encourage girls.
The Commission on Opportunity in Athletics was given eight questions to answer. In its written statement last fall, the MHSAA addressed questions 3 and 4.

Question 3 was this: "Is further guidance or other steps needed at the junior and senior high school levels, where the availability or absence of opportunities will critically affect the prospective interests and abilities of student-athletes when they reach college age?"

We told the Commission it was being asked the wrong question. The issue is not what high schools should do to accommodate colleges, but what colleges should do to accommodate the demonstrated interests of high school students.

The Commission's report gets it right. While it was asked the wrong question, it gave the right answer: "One important theme that has emerged has been the identification of a disconnect between high school and college athletic programs in terms of the respective opportunities they make available. While high school athletic participation for boys and girls has been steadily increasing, the nature of college athletics makes it possible for only a relatively small number of high school athletes to be able to participate in varsity sports at the college level. Thus, cuts in specific programs for men and women at the college level may severely limit the opportunities for boys and girls who participate in those sports in high school. The Commission heard testimony indicating that colleges are not always sensitive to national and regional trends in student interest at the high school level.
"The Commission heard arguments that Title IX enforcement may contribute to this situation by encouraging schools to add certain teams or drop others solely to increase the relative participation percentages for students of one sex. While this may help to create the impression of opportunity, it does not necessarily best serve the interests of the high school students who will eventually be served by the college system.
"In response to this disconnect, it has been suggested that if colleges are careful to factor in demonstrated athletic interest at the high school level, there may be a greater likelihood that a larger number of student athletes will be able to participate in college athletics." Amen!

Question 4 given to the Commission was this: "How should activities such as cheerleading or bowling factor into the analysis of equitable opportunities?"

We suggested to the Commission that the very presence of this question reflected some biases and we told the Commissioners to put their personal preferences and old fashioned notions aside. We told them to believe what girls said they wanted (that's the spirit of Title IX).

We were heard. The MHSAA was even cited in the Commission's final report, the only high school association in the country to be mentioned: "In contrast, the Office for Civil Rights does not have a definition of sports used in assessing the participation opportunities available at individual institutions. Instead, it offers technical assistance to educational institutions to help them identify whether or not activities they sponsor are athletic opportunities for purposes of Title IX compliance. This approach allows for flexibility for schools in determining which sports they will offer for their students.
"The five factors identified by the Office for Civil Rights for determining whether a particular activity is a 'sport' are: 1) whether the selection of teams/participants is based on factors related primarily to athletic ability, 2) whether the activity is limited to a define season, 3) whether the teams/participants prepare for and engage in competition in the same or similar way as other teams/participants in the interscholastic or intercollegiate athletics program (e.g., with respect to coaching, recruitment, budget, tryouts and eligibility, and length and number of practice sessions and competitive opportunities), 4) whether the activity is administered by the athletic department, and 5) whether the primary purpose of the activity is athletic competition and not the support or promotion of other athletes. These criteria allow institutions wide latitude in counting participation in emerging sports as athletic opportunities for purposes of Title IX compliance.
"In addition, some of the national organizations reporting to the Commission have indicated an expansion in the types of activities they recognize as sports opportunities for students. The NCAA, for instance, recognizes nine sports as emerging sports for women, including bowling and squash. Similarly, the NAIA recognizes women's wrestling as an emerging sport. The NFHS lists 13 emerging sports and state athletic associations may include even more. For instance, the Michigan High School Athletic Association recognizes competitive cheer as a sport and recently added a state championship in bowling.

"Thus, emerging sports, including cheerleading and bowling as well as many others, may help schools meet their commitment to offer athletic participation opportunities to their students that meet the requirements of Title IX if they meet the guidelines of the Office for Civil Rights." Hurray!

Any school in Michigan that is not actively assessing the interests of female athletes and accommodating those interests is failing to meet its responsibilities even if Title IX never existed. But schools which meet the demonstrated interests and still do not have as much female participation or spend the same number of dollars on girls sports as boys, are doing right by their constituents and the intent of Federal law. OCR's recent affirmation of common sense and Title IX's original intent is good news for the boys and girls of Michigan.

— John E. "Jack" Roberts
MHSAA Executive Director