by Liz Daube
Women’s education and sports organizations are leading a national effort to fight a policy change that they believe threatens Title IX. The Department of Education issued a Title IX clarification last year that allows schools to assess female student interest in sports with an e-mail survey.
According to the campaign’s Web site, www.savetitle9.com, “The Department of Education has made a major change to the Title IX policy that threatens to reverse the progress women and girls have made. The Department’s latest ‘clarification’ ignores long-time policy and years of court rulings by telling our daughters they have to prove they are interested, while male athletes have never had to prove their interest.”
The policy lets schools send a mass e-mail survey to all their students. Girls who don’t respond can be counted as uninterested in sports and that doesn’t sit well with Nancy Hogshead-Makar, a Florida Coastal School of Law professor and attorney who has joined the battle against the new policy. She writes position papers and provides guidance on sports and education equality law to parents, attorneys and reporters.
“The survey is flawed,” said Hogshead-Makar, adding that surveys usually don’t receive many results and e-mail accounts are often clogged with spam. “It (the survey) is biased to produce a certain result.”
Title IX is a 1972 amendment that attempts to create equal school sports opportunities for women by prohibiting sex discrimination in schools with federal funding. Schools can prove that they’re complying with the law in three ways. First, schools can show that women and men in their student population both have a proportional number of sports opportunities. Essentially, if 50 percent of a school’s students are men, proportionality dictates only 50 percent of the school’s athletes should be men.
The second option allows the school to show a continuous history of improvement — which, according to Hogshead-Makar, is “pretty tough after 34 years.”
The recent policy change applies to the third method, in which a school shows they are meeting the interests and abilities of their students.
As a former Olympic swimmer, Hogshead-Makar has both professional and personal interest in Title IX policy.
“I owe my Olympic medal to this one law,” said Hogshead-Makar. She explained that when she was younger, she believed women reached their athletic peak at age 17. “I thought women didn’t get any better physically — not making the connection that they didn’t improve because there was no place for them to go. There were no opportunities.”
Then, according to Hogshead-Makar, Title IX changed everything. She received an athletic scholarship to Duke University, where she continued to train. At age 22, she won an Olympic gold medal in the 100 meter freestyle.
Hogshead-Makar said she wants the survey policy revoked because it doesn’t produce an accurate measure of female student interest or address the needs of future students. She added that the schools need to survey the population from which they recruit.
Supporters of Title IX policy reform argue that men’s teams have been unfairly lost in the last few decades. Some coaches say Title IX discriminates against men. They say a loss of sports opportunities, such as wrestling teams, can be blamed on Title IX’s proportionality requirement.
A 1997 report released by the Department of Education carries a different opinion: “It is important to recognize that there is no mandate under Title IX that requires a college to eliminate men’s teams to achieve compliance...the regulation is intended to expand opportunities for both men and women.”
Hogshead-Makar said Title IX looks at the number of opportunities to play sports. In other words, the law cares about the number of athletes participating in any school sport, not the number of teams.
Genuine interest is another argument leveled against Title IX. Some opponents contend the law is unfair because men want sports opportunities more than women.
Studies have shown, however, that women are playing sports far more than they used to — and Title IX opportunities may be the cause. A 2002 study by the National Federation of High School Athletic Associations found that women’s high school sports participation increased 847 percent since Title IX was enacted. The National Collegiate Athletic Association found their female participation doubled between 1982 and 2001.
“This sort of stereotype that girls just aren’t interested in sports is just nonsense,” said Hogshead-Makar. “If you hire the coach and provide the opportunity, you find athletes who are ready and willing to play.”
Supporters of Title IX say the importance of providing women with sports opportunities extends beyond recreation, as well. A Women’s Sports Foundation report found that girls who participate in sports have lower rates of pregnancy, suicide and some drug use. In addition, the report said female athletes get better educations by attending class more often, spending more time on homework and taking honors courses.
“We have to remember that when we have sports opportunities, they’re akin to math opportunities,” said Hogshead-Makar. “The reason we have them in schools is that we think sports makes better kids. In my case it’s an elite athlete story, but I think what’s most important is just that people have that experience.”
For lawyers interested in learning more about Title IX, the American Bar Association plans to hold a teleconference called “Title VII vs. Title IX: The Differences and Why They Matter to Your Case” on April 27. More information is available at www.abanet.org.