The Education Department has given universities a new way to prove they offer women equal sports opportunity, triggering some criticism the Bush administration is undermining a landmark anti-discrimination law.The federal government has created an Internet-based survey that schools can use to show they are accommodating the athletic interests and abilities of women on campus. Schools have long been able to comply with the Title IX law by proving they have met the sports interests of women, but never before has the government endorsed and promoted a way to measure that.
Education Department leaders say the new survey will allow schools to scientifically gauge whether they must expand or create women's teams to meet demand. But critics contend the tool opens an enormous opportunity for schools to avoid responsibility.
This is the decision that Title IX critics have been pushing for years, and has to be considered a major victory for them. Click here for the actual announcement from the Department of Education. As you might imagine, supporters of the law are crying foul. Click here for a statement from the National Women's Law Center:
New guidance released Friday by the Department of Education makes it easy for schools to escape their responsibility under Title IX to provide equal athletic opportunities for women and men, the National Women
Well, that’s interesting. It’s obviously good to have other ways to measure interest besides proportionality.
On the other hand, I gotta say that the words “web based survey” do not fill me with feelings of reliability and certainty. I think polling is a good idea; I would rather see them using time-tested methods. (If such really exist.)
I’d also note that the availability of item X can increase the interest in item X. Ask any marketer. This means… ah.
The goal “increase the number of women playing varsity sports at the college level” is not the same as the goal “provide varsity sports for all the women who currently want them.”
As long as we’re talking about meeting the interests of the student population re: athletic participation, please consider this: At the average Division I large state school, how many men played basketball or football in high school? Compare that to the number of positions available on the school’s sports teams. We consider the needs of the male population of basketball players to be met by the one team, even if 200 men would like to play competitive basketball.
I’m all for reassessing Title IX, but I don’t buy email surveys as an effective means of gauging the interests of college students. Not at all. There has to be a better way to reach the sample set.
My clients, the college coaches, and I have our hands full trying to stay involved in the news cycle but I couldn’t let the Myles Brand item pass without remark. This is the same man who called for a summit with the USOC to discuss why men
doesn’t the hypocrisy run both ways, Jim?
I assume that when the closed-door rules were implemented in the first place, you objected loudly that the voice of the people you represent was excluded. Now that you’re in power, you turn around and do the same thing?
By the way: Did you (or anyone) litigate any APA-based claims after the three-part test was instituted?
It will also be interesting to see if schools administer this survey to all students, males and females. The Department of Education recommends surveying all fulltime undergrads. Title IX interpretation considers the interests (met or unmet) of the “overrepresented gender” irrelevant. But the public might not.
There are 30 sports listed on the model survey. One is hardpressed to find a sport on the list that is not played by both sexes today. What happens if the surveys show that the majority of unmet interest is that of males? Will schools find this kind of information inconvenient?
Watch for the people who advocate suppressing that type of information.
When the three part test was first instituted, it was done by skirting federal rule-making procedures
I should start by disclaiming any expertise on the subject — I’m legitimately interested in different views on this whole thing because I really don’t know much myself.
I thought that “meeting interest” was already a “working reality.” The third prong has been around for awhile (how long?), and I’ve heard that around 70% complied using that prong. Is that wrong?
If we’re merely clarifying the third prong so that everyone knows what the rules are, that’s great. But if it’s really just clarifying, is it really an “earthquake”?
And honestly, do you really think this new set of rules is just a “clarification”? Does it really do nothing to affect the strength (or cruelty) of the law? If your employment position makes you unable to answer, that’s fine.
As far as the openness debate… yes, there’s been debate in the past about it. The particular absurdity of this thing though is just that we had the debate two years ago, and the reformers LOST the public debate, and Paige-Bush backed down.
But then they just waited (till after the election) and snuck the change in. On a Friday afternoon (did you ever see that episode of the West Wing?).
If it’s really a good idea, why all the cloak-and-dagger maneuvering? Why not have a notice and comment period, fight and win in the open? (And yes, that should have gone for the original implementation of the three-part test as well.)
To answer your question: Is there a better way to measure interest?
Oh, I really don’t know — again, this week is really about the first time I’ve thought seriously about Title IX, so I don’t know what other options are even out there.
I’m at least open to the possibility that scenarios exist like the Illinois-volleyball one described in Brennan’s column this morning. (But see the Sports Law Blog for a good argument to the contrary.) If there’s a reasonable possibility that situations like that exist, then we probably shouldn’t rely solely on surveys.
Which is all to say: I’m at least open to the argument that current expressions of interest are themselves a function of some history of discrimination. I understand that you are pretty deeply opposed to that argument. I think it’s complicated and reasonably debateable.
Which is also to say: I’m open to all of the chicken-and-egg arguments that come up in all forms of affirmative action, not just Title IX. Again, I understand that you are deeply opposed to those arguments. And given their empirical and theoretical complexity, it will be pretty darn hard for either of us to make much headway with the other. So we may be stuck there, which, in my view, is fine — it’s a reasonable disagreement.
Do you by any chance know the name of the ‘02 case brought by the coaches?
Also (and sorry to ask so many questions) but can you tell me what is so bad about the three-part test? You think that requiring “strict proportionality” is a bad idea, but isn’t compliance by “meeting interest” a good idea? And if that’s one way to comply, what’s the problem?
“When the three part test was first instituted, it was done by skirting federal rule-making procedures
And even the 1996 Clarification was made after notice and comment.
“on September 20, 1995, OCR circulated to over 4500 interested parties a draft of the proposed Clarification, soliciting comments about whether the document provided sufficient clarity to assist institutions in their efforts to comply with Title IX.”
and it apparently heard from both sides.
“OCR appreciates the efforts of the more than 200 individuals who commented on the draft of the Clarification. In addition to providing specific comments regarding clarity, some parties suggested that the Clarification did not go far enough in protecting women’s sports. Others, by contrast, suggested that the Clarification, or the Policy Interpretation itself, provided more protection for women’s sports than intended by Title IX. “
http://www.ed.gov/about/offices/list/ocr/docs/clarific.html
Ted raises some good points and I am going to double-check on the administrative procedure of the three-part test. But first let me clarify for Eric
excellent. And by alluding to your employment position, I wasn’t trying to imply any smear or bias. I just didn’t know if you were a lawyer or some sort of fiduciary in a role that prohibits you from making any statements adverse to your clients’ interest.
I see your point about the third prong being unworkable if it was so vague that schools always lived in fear of lawsuits. On the other hand, if 70% of schools ultimately complied using the third prong, then it must have been at least somewhat workable.
But then — I’ve never talked to anyone in compliance at schools, so I don’t know what it’s like. Would be interesting to get that perspective.
It’s the contention of people like Jessica Gavora that the three-prong test turned into a one-prong test (as Jim knows too well from his work).
The three prongs were supposed to be proportionality; or if one gender is under-represented, show progress; or demonstrate the interests and ablities of the underrepresented sex have been fully and effectively accommodated by the present program.
As Jim as alluded to above, through lawsuits or threats of lawsuits, the de facto standard has been strict proportionality. Regulation and the way regulation has been interpreted also played a role. Bottom line: If you had 55% women and 45% men, you better create enough billets for 55% of the women on campus–and no more than enough for 45% of the men–regardless of whether that proportion of women showed interest in participating.
Oddly enough, this standard was never applied to college admissions itself. The fact that fewer men than women have been applying to college for years has never been interpreted as something that required a law as remedy, or a sign that men had been socialized out of a desire for college. Nor are other parts of student life where women dominate subject to the “strict proportionality” test.
What the Dept. of Education has done is to try restoring one of the prongs–expressed interest. I am surprised about the method, however. Internet surveys seem especially vulnerable to gaming–how hard will it be for activists to organize survey spamming?–and at first blush I’m skeptical that it would generate a statistically valid sample even absent gaming. Perhaps if it’s advertised properly and there’s an effective method for students to ID themselves.
(fwiw I met Jim when I was blogging about this a couple years ago)
Ted hits on some key points
One more quick point — I’d like to concede error in saying that there was no public comment. There was — although it was irrelevant and disregarded for a preordained outcome. Nevertheless, I oversimplified. That’s a two-shot foul.
Christopher –
what you say makes no sense to me at all. You say that the de facto standard has been strict proportionality. But even before last week, 70% of schools reached compliance through the third prong.
In other words, 70% of schools were deemed to comply with Title IX not by reaching strict proportionality, but by showing that opportunities matched interest.
The threat of lawsuits may have made the third prong less workable and less good than it should have been, but it still worked well enough for 70% of schools to use it.
So what are you talking about?
Jim –
thanks for all the response and the cites.
I’m all for clarity. If the third prong was previously vague, then clearing it up is to the good. Of course, they did more than just clear it up — e.g., saying that nonresponses count as “not interested” wasn’t just clearing up the prior standard. It cleared it up in a way that helps your side. So it’s not like it was some neutral clarification.
I have never said that Clinton/Carter had no ulterior motives. I’m fully open to the possibility that they used some cloak and dagger shadiness as well.
But –
you say: the mere fact that you have notice-and-comment doesn’t elevate it to legislative rulemaking. But that doesn’t really answer: was the 1979 decision legislative rulemaking or not? Did they comply with the APA or not? Was this point litigated, and what was the result?
in ‘96, i get the sense that they didn’t comply with the APA, but rather did some voluntary and informal (non-APA) notice-and-comment. Maybe they just did it as a sham and didn’t listen to your side. Is that better or worse than taking no comments at all? I don’t know. Both are bad.
But basically I’m with you. I’m no APA expert, but I believe in its importance. I don’t apply it differently to Clinton, Carter, Bush. Serious changes to these rules should be done ONLY in accordance with the APA, regardless of whether the changes make Title IX stricter or looser.
Here’s the one part where you really lose me: “1979 and 1996 changed the prior regulations; 2005 did not.”
Perhaps here you’re just anticipating litigation and APA challenges. Perhaps here is where you really can’t speak freely because it would adversely affect your clients interest.
Because it seems pretty clear to me that last week’s move DID change the prior regulations.
Ignore everything about the survey — that is, as Greg Sports Law Blog has said, probably a red herring. The real issue are the new burdens and standards. The new rules shift the burden to women by creating the “presumption of compliance” — that’s new. That presumption can only be overcome by “very persuasive” evidence — that’s new too.
Those things aren’t mere clarifications. They change the rules of the prior agency actions. They do, as you well know, make compliance a little easier, and make challenges a little harder.
I’m pretty agnostic on the substantive question — maybe that’s all a good idea, maybe compliance should be a little easier and challenges a little harder. But don’t tell me nothing has changed.
And one last thing.
The APA requires notice and comment for rule changes. It’s a good law — it brings not only comment to the agency, but also the opportunity for press, Congressional attention, and other forms of public input.
At the end of the notice-and-comment period, the agency makes a decision. Often the decision adversely affects someone’s interest. That someone always says: “the notice and comment was a sham, it was disingenuous, you didn’t really listen, you disregarded everything I said and went ahead with your preordained outcome.”
But that is, in a sense, irrelevant for the question of APA compliance. The APA doesn’t guarantee you a result; it just guarantees you a process.
My biggest question right now is: were the 1979 and 1996 and 2005 “clarifications” made in accord with the APA-mandated procedure? If not, why not?
I think that the legalese distinction between what a
Yeah, APA-wise, the legal distinction is between “legislative rules” (which require notice and comment) and “interpretive rules” (which don’t). The distinction is very difficult to draw.
I quoted Posner yesterday on this point. “Distinguishing between a ‘legislative’ rule, to which the notice and comment provisions of the Act apply, and an interpretive rule, to which these provisions do not apply, is often very difficult–and often very important to regulated firms, the public, and the agency.”
It is very difficult, and courts often have a hard time doing it. I think what it comes down to is: if the courts think it’s a big change, they call it legislative; if they think it’s a small change, they call it interpretive.
In most contexts, the agency wants to avoid the APA (it is, after all, costly, slow, and a general pain in the butt). So the agency ALWAYS wants to say that it’s “interpretive.”
Federal agencies, therefore, often call things “clarifications.” Last Friday’s action was a “clarification.” So was the 2003 action. So was the 1996 action. None of them changed the standard, in the sense that “meeting interest” has always been the standard — the language of the third prong has never changed.
But that doesn’t really tell you whether it was a big enough change that the APA should have applied.
Burden shiftings are far from esoteric. They matter a great deal, especially in litigation costs. The party that bears the burden is the party that must produce the initial facts at trial (to survive a pre-trial summary judgment motion). In other words, the party that bears the burden is the one that has to spend the most money, especially up front.
Now maybe the women should bear the burden, maybe they shouldn’t. But the shift to them is a pretty significant change.
Ted deserves a lot of credit for looking into the backstory on how the three-part test evolved
The coaches have been trying to have a dialogue with the NCAA about Title IX for more than five years now and have been actively excluded at every turn. For Brand to now argue that there wasn�t enough discussion just staggers the imagination.
His complaint about the survey is just as bankrupt. Again, what easier, more accurate way could there be for a school to gauge a student�s interest in sports than by asking him or her? If schools can comply by �meeting interest,� as the law and Brand insist they can, then how shall they find out who is interested?