An interesting article Wednesday in Inside Higher Ed detailed the increasing frustration that athletics administrators are feeling in their efforts to comply with Title IX.
David Moltz’s story, “Pick Your Poison,” detailed the difficulties that athletics administrators say they face in trying to meet any of the three prongs of the Office for Civil Rights’ athletics compliance test.
The difficulties with the first two prongs are clear-cut:
- It’s becoming harder for programs sponsoring football to demonstrate that female athletics participation is proportional since the percentage of overall female undergraduate students continues to rise.
- Demonstrating continuing expansion of opportunities for women is becoming more difficult since Title IX has now been law for 40 years.
So, most of the discussion at an NCAA Gender-Equity Forum centered on compliance with the third prong, which is accommodating the interests and abilities of the under-represented gender. Moltz described the discussion as follows:
“Attendees peppered (OCR Title IX team leader Jacqueline) Michaels with questions specific to their institutions − some asking if their new student survey had a high enough response rate to demonstrate a lack of interest in new women’s sports, others asking if they should be forced to add a women’s team first for which they had no existing resources simply because it had more interest than one that would be easier and more fiscally responsible to start. One athletics official, a man who did not identify himself to the panelists, bluntly asked if there were ‘really still’ three viable tests anymore, because he said he could not name an institution that had successfully proven that it had met the third test — which he criticized as ‘illusory.’
“Michaels and (attorney Janet) Judge responded by noting that they have seen a number of institutions pass the third test since last year’s change made it more complicated to do so (the Obama administration overturned a Bush-era policy that counted failure to respond to a survey about sports offerings as a demonstration of no interest). Pressured for a specific number, Michaels could not offer one, noting that she still believes a solid majority of new institutions being investigated will show Title IX compliance by passing this third test.
“While they asked questions of Michaels, attendees also expressed hesitance to seek further guidance from the Education Department’s Office for Civil Rights when confused about whether their institutions are successfully passing a test to comply with Title IX. One athletics official, a woman who did not identify herself to the panelists, asked Michaels if asking the federal agency for help with Title IX issues would ‘open the door for a proactive investigation’ of her institution. Though Michaels could not entirely ease the minds of attendees, she noted that it was ‘unlikely’ that such a request for help would result in a government investigation of an institution.
“ ‘If you want to contact our office anonymously, you can do that if that makes you more comfortable,” Michaels said. ‘It’s not a ‘gotcha’ situation.’
“After the session, Michaels said she was ‘surprised’ to hear that many institution officials are nervous about asking for guidance from the Office for Civil Rights. The office, she said, is ‘trying to do more outreach’ to overcome such anxieties. Judge noted that she was ‘bothered,’ but not entirely surprised, by the anxiety of some of the college officials in attendance. Still, she commended Michaels’s efforts to elucidate what many find a confusing process.”
Last week, Pittsburg State officials shared their experiences with a random Title IX audit with a group of Division II presidents and commissioners. In no way did the Pittsburg State contingent challenge the motives, abilities or professionalism of the review team. However, they did observe that the review was very much by the book. The government personnel involved were not especially familiar with athletics structure, policy or purpose. Their primary counsel of Pitt State administrators to anybody involved with a Title IX review was this: Be patient.
This all does have some Catch-22 elements to it. The law is the law, but it can lead some programs into corners: Cut their revenue programs, or cut men’s nonrevenue programs in order to make the numbers work. Maybe counsel from the government would help, but athletics administrators appear apprehensive about that approach for fear of causing more problems.
None of that portends a resolution for this four-decade-old problem. Maybe everybody involved would be better served by focusing on reasonable compromises rather than victory.