See Jane Run: Women Athletes Set the Pace, But Will Title IX Go the Distance?

Bush Does an End Run Around Equity

By Cindy Ellen Hill

Photo: Carolyn L. Bates – carolynbates.com

Burlington athletes – back row from left: Kaela Meals, Sophie Reville; front row: Annie Reville & Coco. Lucy Myers and Lucia Monte.

When Burlington College President Jane Sanders was in high school in the 1960s, she used to join the boys in their track workouts even though she was not allowed in the meets. It was her daughter, Carina, who got to compete in track and field, as a discus thrower. What made the difference in just one generation? Title IX of the Educational Amendments of 1972, which put women in the running for a full spectrum of athletic and educational opportunities. Now, after more than thirty years of significant strides, a recent behind-the-scenes Bush Administration policy change has both women and men asking, will Title IX be allowed to go the distance for the next generation?

Title IX

The key provision of Title IX bans sex discrimination in schools: “No person in the U.S. shall, on the basis of sex, be excluded from participation in, or denied benefits of, or be subjected to discrimination under any educational program or activity receiving federal aid.” A 1974 amendment expanded the law to explicitly prohibit discrimination in athletic programs.

Female participation in school sports has increased nearly 900 percent since the introduction of Title IX, according to Sanders. In high school sports alone, the number of young women participating rose from less than 300,000 nationwide in 1971 to almost 3 million today.

“No piece of legislation has impacted more on sport development than Title IX,” says UVM Athletic Director Bob Corran, whose doctoral dissertation compared national sports policies in Canada and the United States.

For Corran, the value of involving women in college sports is undeniable. “All of the things that we believe are a result of participation in athletics -leadership, self confidence, inner personal growth- all of those things are just as important to female students as to male students,” he says. “It’s about preparing people for their professional lives and also for their lives as citizens.”

As Sanders puts it, “Title IX is about civil rights, breaking barriers and challenging assumptions, establishing equity in every aspect of education.”

Title IX applies to any schools, from elementary through college, that receive federal funds. Compliance at the collegiate level is determined by what is known as the Three-Prong Test. Colleges and universities must show they are fulfilling one of three prongs: 1) proportionality (providing sports opportunities that reflect the proportion of men and women in the student body); 2) a history of continually expanding athletic opportunities (adding women’s programs and not, contrary to popular opinion, cutting men’s programs); or 3) a demonstrated lack of interest and ability on the part of the under-represented sex.

Title IX went virtually unchanged until January 1996 when, through a notice-and-comment rulemaking procedure, the U.S. Department of Education Office of Civil Rights (OCR) adopted a “Clarification of Intercollegiate Athletics Policy Guidance: The Three Part Test.” The clarification confirmed common knowledge that schools only needed to meet one, not all three, of the test prongs to be in compliance. It also provided numerous practical working examples of compliance specifically demonstrating that cutting men’s programs was not an acceptable means of reaching Title IX parity.

Rule by Fiat

The vast and obvious success of Title IX has meant that Congress didn’t touch it. In the last two years, however, President George W. Bush’s administration has made two separate attempts to alter and undermine Title IX’s commitment to equality. In the first, Bush himself appointed a commission in 2003 to conduct a study of Opportunities in Athletics under Title IX, which recommended what amounts to backtracking on Title IX. In hearings across the country, public outcry was loud and forceful. The commission backed off; no formal rulemaking action was taken.

Then, on March 17, 2005, acting Department of Education Assistant Secretary for Civil Rights James F. Manning issued a “Dear Colleague” letter of Additional Clarification that he stated was meant to help “reinforce the flexibility of the three part test.” In a nutshell, the letter states that colleges and universities meeting Title IX obligations under the third prong of the test – “demonstrating a lack of interest and ability on the part of their under-represented, usually female, students” — may now satisfy that prong through an email survey to their female students. Schools can construe a failure to respond as evidence of a legally qualifying lack of interest. (The “Dear Colleague” letter at www.ed.gov/about/offices/list/ocr includes a “Users Guide and Technical Manual” with the recommended sample survey.)

This letter was issued under the guise of an internal policy “clarification,” without the public notice, comment, and appeals processes required for rulemaking under the federal Administrative Procedures Act. “That’s the only way they can do it, by fiat,” Sanders explains. “If they do something that is just a ‘clarification’, the DoE can just say it. That wasn’t an accident; they planned it that way, and Congress plays no role in that.”

Administrators in both athletics and academics scoff at the concept of a student email survey being the basis for substantive policy, especially about something as important as equity. “The way they’ve gone about it, the nature of the surveys they’ve recommended, do not get the quality of information that’s needed to make sound decisions,” Corran says. “If schools are not really committed to the spirit of the legislation, this provides them with a way to back away from responsibility. [And for] those schools who are earnestly dedicated to the spirit of the legislation, it may not give them adequate information and they may not be aware of that.”

Even tech-savvy Amanda Cuiffo, the new twenty-five-year-old Director of Women’s Athletics at Norwich University who holds a 2005 M.A. from Smith College in Exercise and Sports Studies, agrees. “Like any survey you put out anywhere, the response rate [for an email survey] will be low. I can’t imagine it would be comprehensive enough.”

The Big Picture: Bush and Women

A retrenchment on one prong of a three-prong test of one gender-equity statute may seem like a small thing, but the public outcry from multiple groups over this Title IX additional clarification suggests otherwise. In late June 2005, one hundred and forty Democrats in the U.S. House of Representatives presented Bush with a letter urging the withdrawal of the Title IX Clarifications. The NCAA, arbiters of college athletic competition, has also urged withdrawal of the March 17, 2005 Clarification. “The NCAA is asking members to decline use of the new suggested procedure,” said Geri Knortz, athletic director at St. Michael’s College. “It’s a poor tool to determine interest, the rate of return will likely be low [and] it was put out there without notice and opportunity to comment.” Women’s legal, employment, and educational organizations across the country have also joined voices in protest.

For many, the Title IX policy shift is symptomatic of a larger policy direction. Sanders sees it as a typical example of the Bush Administration’s “return to the fifties” attitude towards women generally. “They are participating very clearly in social engineering in everything they do. They are using every vehicle they have to move their agenda forward, and the media bears a great deal of responsibility of reporting this in the context of not being a stand-alone issue,” she said.

Gail Smith, Middlebury College Associate Director of Athletics and NCAA compliance officer, shares Sanders’ critical view of the Bush administration agenda. “This administration doesn’t even allow women to wear pant suits in the White House. This is a conservative attempt to undermine Title IX. There is a contingent of these folks who don’t see that sports are appropriate for women. It bothers them that women are out there moving their bodies around through space, wearing athletic clothing. You think Laura Bush and the girls played sports? But it’s okay for the men,” she said.

Senator Jim Jeffords (I-Vt) has also voiced concern. “Although these Title IX changes are not as draconian as others that have been proposed, they still represent an attempt by the Bush Administration to weaken this important law when we should be working to strengthen it,” he said.

The Bush Administration’s response to all objection has been silence, and the Department of Education Public Affairs office declined to return repeated calls for this article. The spirit of Title IX has been that schools have an obligation to provide athletic opportunities for women regardless of whether women express any advance interest. The burden has been on schools to prove that the opportunities have been provided. The question arises whether, with this clarification, the burden of proof has shifted.

A New England Title IX regional agency employee, speaking on grounds of anonymity, admitted “I hear through the grapevine that students tend to be less responsive than might be appropriate to these things [the email surveys]. And the biggest problem I see is that schools [still] have to realize that the obligation to provide opportunities is there, no matter what.”

It won’t be clear until September at the earliest which schools across the country are using the email survey. Most colleges in Vermont will be unaffected by the change because they meet their Title IX compliance through the proportionality test. “So many schools feel that prong one is the safest way to go; but only the office of civil rights can determine if the school is in compliance,” Knortz said. But, she added, “there are very few schools in our region [of the Northeast Ten Conference] within compliance for proportionality, so they must be relying on either the second prong [a history of continually expanding athletic opportunities] or this third prong that the email survey relates to.”

One thing is sure, as Cuiffo sees it: compliance needs to be reinforced, not weakened. “Because of the pressures of Title IX, there’s a bigger effort to promote women’s sports, driven by having a Title IX compliance officer looking over your shoulder,” she says. “Who knows what would happen if they weren’t there?”

Cindy Ellen Hill is a freelance writer and recovering attorney living with her family in Middlebury.

Vermont Educational Institutions
Aren’t Backing Down

Norwich University relies on the first two prongs of the three-prong test to meet its Title IX compliance. “Norwich has a gender imbalance among the whole student body, roughly 70 percent males to 30 percent females,” Amanda Cuiffo says. Considering the proportionality, their extensive women’s athletic program more than meets the first prong of the test. They also have a history of adding to and expanding their women’s sports programs. A recently conducted review of the athletic department emphasized the importance of continuing to add women’s sports, which is also a key component of the University’s plan to recruit more women students generally. In 2006, Norwich is adding varsity women’s lacrosse and volleyball” – Cuiffo was hired to coach the nascent volleyball team.

Cuiffo is also optimistic about the growing fan base for women’s sports, noting that she prefers watching women’s athletic encounters because there is better, more extensive play. “In volleyball, the men often score on the serve or with one return,” she says. “With the women’s teams, there’s more of a rally going. And the level of play just keeps getting better.”

UVM

Despite his disapproval of the new survey policy, Bob Corran says that UVM is not affected by it because the university meets its Title IX obligations under the first prong substantial proportionality test. UVM also has more women athletes than men. “We have a student population in the neighborhood of 55 percent female, and that’s right where our sport participation ratio is,” he says.

UVM is planning a solid future for women’s athletics as well. “We just went through a comprehensive strategic planning process to look at the long term future of the program, and fundamentally our vision is to enhance our athletic offerings. We made some adjustments in the scope of the program, dropped men’s golf and swimming, and men’s and women’s tennis, and added men’s track and field. We did this after looking at those areas where there is a high level of participation in Vermont high schools as well as in our conference alliance, and we now have twenty sports that we can be successful in regionally and have some success nationally. Our goal is to enhance those programs nationally, adding scholarships, with the majority of those going towards women’s teams.”

Corran notes that the increased fan base for women’s athletics helps maintain the forward momentum and helps drive resource commitment. “It has really grown over the years, and part of that frankly is because of the quality of female athletes and the quality of the games has improved, which is a natural outgrowth of the opportunity and resources that have been put into women’s athletics over the years. You really see the quality improve.”

Middlebury College

Gail Smith is confident that Middlebury meets all three prongs of the test. “We have a large number of offerings, and a history of adding to and expanding women’s sports,” she says. “Compared to our peer schools, Middlebury has been co-ed a long time, and our sports programs are outstanding.”

Smith says that the athletic department has no formal needs assessment program per se, but that new athletic interests have ample opportunity to arise in the context of intramural and club sports. “The student body has many ways to express their interests and form new clubs and intramural groups that are initially funded through the student activities budget. Then if there is interest and participation, many of these groups have moved up to become varsity teams. This has happened with soccer, softball, and women’s ice hockey at Middlebury.”

Smith is less optimistic about fan support for women’s college athletics, however. “When UVM women’s basketball is doing well, they have a good fan base,” she admits. “But when we had the women’s championship ice hockey game here at Middlebury, we had 500 people in the arena; the men’s games are sold out with 2500 people.”

Smith is not surprised, however, that Vermont schools remain committed to Title IX compliance despite the change in Bush Administration policy. “Our approach to Title IX here in Vermont would be reflective of our political values,” she says. “Where this new policy hurts the most is in those areas of the country, those schools that are already short on funds and resources. Here at Middlebury, there has been, at least in the last ten to fifteen years if not before, a genuine desire to promote equity. The challenges at many schools arise in resource allocation. If they make the athletic director responsible for compliance, it’s done by juggling resources within the athletic department. But the real capacity for resource allocation is at the upper levels. The true responsibility for compliance rests with the President and Board of Trustees of the college.”

Johnson State College

According to Barbara Lougee, director of athletics and recreation, Johnson complies with Title IX through proportionality. “We have a very small student body, only about 1,000 full time undergraduates, and the vast majority of those are Vermonters who are working part or even full time while attending college, so there is not a huge percentage of students involved in athletics, probably about 10 percent to 13 percent. There are a few more female students than male in the student body, and the athletic participation matches that within 1 percent,” she said.

Coaching as the Key: Gail Smith’s Perspective

At Middlebury College, Gail Smith has coached men’s and women’s tennis and track and field, as well as women’s lacrosse. Crossing the coaching gender lines puts her in a group of just 1 percent of all coaches in the country. “99 percent of male student athletes are coached by men, and 56 percent of female students are coached by men, and that number is increasing. It’s actually getting worse. Prior to Title IX, 100 percent of female athletes were coached by women,” she said.

In the last 2 years, Smith held grant-funded coaching symposiums encouraging women athletes to consider careers in coaching. “For me, the main issue is the secondary and tertiary effects of Title IX, which are to find highly qualified female coaching and administrative staff. We need to increase women’s retention rates and sustain their interest. What happens at the level of student involvement effects careers; if they see a female role model, they might think of that as a career they want to pursue,” she said. “All across the country, when a coaching position for a mens team comes up, realistically only men are considered. When a coaching job for a women’s team comes up, both men and women are considered, and women only get some of those jobs. Equity will be when more women are coaching men.”

Smith believes that while women are making individual athletic advancements, sports as an institution is still structured on a male model that in some ways resembles a military hierarchy. “Male youth programs all have these levels to be promoted through and there’s always one man who’s in charge; it’s all about power, privilege and authority,” she said. “Sports opportunity for young boys is very broad based. For girls, there are few involved at the base, and those same few wind up being involved in athletics straight through school. Then they hit the level of professional sports and there are no opportunities. It tops out.”

In the end, women athletes are not enough to change the game all by themselves; they need women coaches, administrators, and advocates, Smith says. “In all my years of involvement with athletics, my work is all about opportunity for women to learn the skills to find their place in the world with men, so that women can stand shoulder to shoulder with men in every field. In the athletic field you have to develop a feminist attitude; you have to say, there’s nothing wrong with me, it’s their inability to see beyond their own gender bias.”