New Developments May Alter Enforcement of Title IX
An Education Department clarification and 2 court rulings will change how colleges view the law
By WELCH SUGGS
Indianapolis
Here at the Women's Final Four, the crowd was just as crazy as at the men's. A little shorter on average, perhaps, but the fans were just as passionate, and the RCA Dome was just as crowded as the Edward Jones Dome in St. Louis had been the night before.
Basketball fans turned out in droves to support their teams, including a vocal contingent of several thousand in Baylor University green and gold. People love winners, and if the winners happen to be women, so what?
Women's sports have arrived. One cannot think of college sports without thinking of women's teams and events -- and most people give at least partial credit to Title IX of the Education Amendments of 1972.
In 2005 nobody publicly questions the law's central requirement -- that federally supported institutions should not discriminate against women in sports and should provide adequate opportunities for them to participate. But developments in the past month have made the details a matter of much controversy.
First, the U.S. Department of Education released what athletics administrators and advocates for women's sports call an oversimplification of its rules for Title IX in sports. Then, the Supreme Court issued a ruling that gives rights to whistle-blowers who complain that institutions are violating the Title IX rights of other students or employees.
Finally, a federal court in Colorado ruled that the University of Colorado at Boulder did not violate the Title IX rights of female students who say they were raped by football players and recruits.
Taken together, the policy change and the court cases do not demonstrate any kind of trend. What they do show is that because of the way the law was written, the courts and the federal government are still having to hash out its finer points.
A Clarification
The Education Department's "policy clarification" is its third attempt to explain how colleges can meet one of the basic requirements of Title IX outlined in a 1979 document: "In effectively accommodating the interests and abilities of male and female athletes, institutions must provide both the opportunity for individuals of each sex to participate in intercollegiate competition."
Colleges and schools comply with that rule by offering the same percentage of spots on teams to women as there are women in the institution's student population; by having a history of expanding opportunities for female athletes; or by demonstrating "that the interests and abilities of the members of that sex have been fully and effectively accommodated by the present program."
The department's clarification concerns the third option. Previous documents have offered a multitude of ways to determine the strength of an existing program, such as conducting surveys of current students, assessing trends at feeder institutions, and looking at the sports offerings of other institutions in the region.
As of last month, all that colleges have to do is survey their student populations about athletics interests and abilities, using a report designed by the Education Department. If the survey does not show enough female students with the talent and desire to compete in a sport that can find opponents in the institution's normal competitive region, then the college is presumed to be in compliance. A lack of response, the new policy says, will be interpreted as a lack of interest.
That apparent dilution of the requirement has some athletics officials outraged.
"Especially at this time of year, when the world is focused on men's and women's basketball and other winter championships, people were just stunned," says Jean Lenti Ponsetto, athletics director at DePaul University. "It just seemed like a ludicrous statement for anybody who knows anything about higher education."
Edward A. Leland, Ms. Ponsetto's counterpart at Stanford University, says the new test is "overly simplistic."
"It's like having a budget referendum, and for people who don't go to the polls, to count them as a 'no' vote," says Mr. Leland, co-chairman of an Education Department panel that published 23 recommendations for changes to Title IX in 2003.
More Complications
However, the guidance is not so cut and dried. It calls on colleges to conduct a census of their student populations, using some method likely to elicit a high response rate, like requiring students to fill out the survey to register for courses. Or a college can send e-mail messages to students telling them that a failure to respond will be interpreted as a lack of interest in sports.
If there are other indications of interest and ability, such as an active club-sport program, then students, coaches, or anyone else could file a compelling complaint with the Education Department's Office for Civil Rights, says Arthur L. Coleman, an official in that office during the Clinton administration. The new guideline, he argues, is very much in line with the department's previous Title IX policies.
"It's moving in a direction where the clear, preferred avenue is where perhaps you make the life of a college or university administrator easier by knowing what your default is and what a good survey looks like," says Mr. Coleman, who is now a lawyer with the firm of Holland & Knight. "It's subtle in its shift, but I don't think it's fundamental."
Lawyers with the National Women's Law Center, officials of the National Collegiate Athletic Association, and Democratic Senators Harry S. Reid, of Nevada, and Hillary Rodham Clinton, of New York, have all criticized the new policy, mostly for not requiring colleges to assess the interests of students in feeder high schools or in their recruiting regions. However, Mr. Coleman says, that has never been part of Title IX policy.
"This is about equal opportunity, but at some point you have to draw a clear line about the scope of obligation," he says. "It's a stretch to say an institution should be responsible for students not on its campus."
James F. Manning, acting assistant secretary for civil rights in the Education Department, says the survey is only one of several ways a college can comply with Title IX requirements.
"All these other factors are things schools look at on regular basis," he says. "We're not saying the survey is the only way to come into compliance."
Each part of the three-part test, he says, "stands on its own."
Colorado Lawsuit
As the Department of Education continues to struggle with Title IX, courts are exploring the law's boundaries. Late last month two female students lost the first round of a lawsuit accusing the University of Colorado of violating their Title IX rights after they claimed they had been raped by football players and recruits.
The Supreme Court has ruled that "severe, pervasive, and objectively offensive" sexual harassment is a Title IX violation, and that educational institutions can be sued if their officials are aware of the harassment and do nothing to stop it.
The judge in this case, Robert E. Blackburn of the U.S. District Court for Colorado, ruled that although the two women, Anne Gilmore and Lisa Simpson, had suffered "severe and objectively offensive sexual harassment," they could not prove that the university knew, or was deliberately indifferent to the possibility, that players and recruits would harass female students.
The decision outraged local activists, with one Colorado professor telling reporters that the court was "declaring open season on women." The plaintiffs have said they will appeal.
Legal experts point out that Judge Blackburn awarded court costs to the university -- an indication that he believed the plaintiffs' case to be so weak that they should not have filed the lawsuit in the first place.
Sarah K. Fields, a visiting assistant professor of sport, exercise, and the humanities at Ohio State University, says Judge Blackburn based his decision on a narrow reading of how much university officials needed to know about the potential of players' and recruits' harming the women.
"This court set a ridiculously high level" of prior knowledge for university officials, says Ms. Fields, who holds a law degree and a Ph.D. The judge ruled that officials in a position of power, such as the university president, athletics director, and football head coach, had to have actual knowledge of harassment of women by players and recruits and to have deliberately ignored the possibility that such harassment might happen again.
Another court, she says, might have ruled that the many allegations of sexual misconduct made against Colorado football players should have given university officials reason to suspect that that kind of misconduct could happen.
Protected from Retaliation
Earlier in March, the Supreme Court declared in a 5-4 decision that a girls' basketball coach who complained that his athletes were suffering from discrimination was protected from retaliation. The coach, Roderick Jackson, had been fired by the Birmingham (Ala.) Board of Education after complaining on behalf of his high-school team.
The court had ruled in earlier cases that whistle-blowers were protected against retaliation. In this case, Justice Sandra Day O'Connor wrote in the majority opinion that protecting the rights of those who complained on behalf of powerless victims, like high-school students, was a natural reading of the Title IX statute.
Mr. Coleman, the former Education Department lawyer, said the ruling was expected. "What came through from Justice O'Connor was a recognition of education reality," he said. "There are students who don't know how to or can't assert their own rights, and if there's a clear case of discrimination, someone should have third-party standing to assert it."
A Broad Law
In her opinion, Justice O'Connor also pointed out the distinction between Title IX and other civil-rights laws. Most contain long lists of banned discriminatory conduct, but Title IX is a simple prohibition against discrimination, with a few exceptions.
The Supreme Court has had to decide that individuals have the right to sue institutions under Title IX; that they can receive monetary damages for violations of their Title IX rights; and that educational institutions can be held accountable for the actions of instructors and students.
"Title IX is a broadly written general prohibition on discrimination, followed by specific, narrow exceptions to that broad prohibition," Justice O'Connor wrote. "Because Congress did not list any specific discriminatory practices in Title IX, its failure to mention one such practice says nothing about whether it intended that practice to be covered."
Thus, experts on the law say, the skirmishes over the particulars of Title IX will continue to be fought as the law evolves.
Back at the women's Final Four, Kim Mulkey-Robertson, coach of the champion Baylor University Bears, stares at a reporter as if he's lost his mind. He has asked if she's heard anything about the new Title IX guidance in the past month, when she's been consumed with getting her team to the national championship.
"No," she says flatly.