IWF Letter to U.S. Representative John Kline on Title IX in High School Athletics

Earlier today, the following letter was sent by the Independent Women’s Forum to U.S. Representative John Kline (R-MN), the Chairman of the House Committee on Education and the Workforce concerning Title IX and high school athletics.

In it, Lukas urges Congressman Kline to investigate OCR’s activities in this area. More later.

February 8, 2011

The Honorable John Kline
U.S. House Committee on Education and the Workforce
2181 Rayburn House Office Building
Washington, D.C. 20515

Dear Chairman Kline:

As explained in detail below, recent developments related to the application of Title IX in K-12 education pose a serious threat to high school athletics. It is the belief of the Independent Women’s Forum, a 501(c)3 non-profit organization dedicated to women and public policy, that such a threat can and should be avoided. We therefore encourage you, through the work of the U.S. House Committee on Education and the Workforce, to investigate this matter to the fullest extent possible in order to spare significant cuts to athletic programming and save millions of taxpayers’ dollars during an economically challenging time.

While Title IX, the landmark 1972 law that bans sex discrimination in educational programming, applies to many areas, it is best known for its role in regulating college athletics. Schools must take Title IX into account in a variety of areas including the quality of facilities available to each sex, scholarship amounts, and participation rates. It is the last area that has caused the most controversy over the years.

In 1979, the Office for Civil Rights (now housed in the Department of Education) developed a three-part test for schools to demonstrate Title IX compliance regarding participation rates. A school was deemed in compliance if they met any of the following measures:

1) Providing athletic programs proportionate to the gender ratio of the overall student population (i.e. if 57 percent of the student body is female, then 57 percent of athletes must also be female)

2) Providing historical expansion of opportunities for the underrepresented sex (i.e. showing progress toward such a proportional gender quota)

3) Meeting the interests and abilities of the underrepresented sex

Of the three options, the proportional gender quota is the only measure to provide schools and the government with clear-cut numbers. It was also deemed a legal “safe harbor” by the Department of Education in the 1990s. It is no surprise then, that proportionality is the enforcement measure of choice for schools. Attempting to comply via the other two options can still leave schools vulnerable to lawsuits and investigations. Unfortunately, this reliance on proportionality has led to some unintended consequences.

With rising female enrollments (women make up six in every ten undergraduate students nationally), schools are left with two routes to meet proportionality’s demands: add women’s teams or cut men’s teams. The route of cutting men’s programming is often attractive as it also reduces schools’ spending on athletics, which is even more attractive in a down economy. Just last month, University of Delaware and Bemidji State University cut men’s sports programs.

Those cuts are part of a significant historical trend: a 2007 longitudinal study of NCAA athletic participation data confirmed that over a 25-year period, opportunities for men have declined. From 1981 to 2005, male athletes per school declined 6 percent and men’s teams per school dropped 17 percent. Meanwhile, female athletes per school rose 34 percent and women’s teams per school rose 34 percent. The total number of women’s teams has exceeded the number of men’s teams since 1995. It is great to see more opportunities for women, but there is no reason that such opportunities should come at the expense of opportunities for men. Using Title IX in such a fashion flies in the face of the anti-discriminatory spirit of the law.

Now, a new effort is threatening to bring the strict proportionality standard (and the corresponding cuts to men’s athletics) to the high school level. In November, the National Women’s Law Center filed administrative complaints against 12 school districts claiming that they were not providing enough competitive opportunities for female athletes based on proportionality.

Proportionality’s rigid standards have taken a toll on college athletics. There is no reason to believe that the results would be any different at the high school level. In fact, proportionality’s negative impacts are likely to be more pronounced, as many more students participate in high school athletics than collegiate athletics. Adopting the three-part test in high schools in the current economic climate would ultimately sideline up to 1.3 million male high school athletes.

There are also serious legal concerns as to whether the proportionality standard even applies to high schools. Enclosed is a letter sent by the Pacific Legal Foundation to the Office of Civil Rights that challenges the assertions made by the NWLC in their complaints. According to the Pacific Legal Foundation (an organization that has extensive litigation experience with respect to race- and sex-based discrimination and preferences, the Civil Rights Act, and many other relevant legal areas), the approach to Title IX compliance advocated by the NWLC likely violates the Equal Protection Clause.

Specifically, a high school following three-part test would be subjecting boys to disparate treatment without sufficiently probative evident that such treatment is needed to combat sex discrimination. Additionally, the NWLC complaints contain a misleading sleight of hand: the word “intercollegiate” has been replaced by “interscholastic” in a blatant attempt to mislead school districts that the 1979 Title IX compliance measures apply to high schools, when in reality they were designed for colleges and universities.

Given all the problems with proportionality at the collegiate level, it seems imprudent to expand the same method of enforcement to the high school level. In addition to being unfair to many high school athletes, such a move would also require significant government resources to fund investigations of school districts. At a time marked with massive budget deficits, such investigations hardly seem like a wise use of taxpayer dollars.

The controversy over Title IX compliance at the high school level is not likely to go away anytime soon. As this is a matter that could potentially affect millions of high school athletes, we believe at the Independent Women’s Forum that this issue deserves a proper public debate. We urge you and your committee to investigate this issue.

Thank you for your attention to the matter.

Sincerely,

Carrie Lukas
Executive Director
Independent Women’s Forum

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