More on Yesterday's Announcement on the Model Survey

Here in Washington, it's the day after the Obama Administration announced a change in the way schools can use the model survey to prove compliance with Title IX. Needless to say, while the folks at CSC were disappointed with the decision and believe that it's an incredible step backward, we're not any less committed to the fight for true equity in college athletics.

In the meantime, I wanted to share with you a couple of more clips where the CSC was featured. As we've noted from time to time, there are a number of news organizations -- CNN and ABC News I'm looking right at you -- who act as if there's no other side to the story when it comes to Title IX. At the Washington Post, Mark Viera took some time to talk to CSC Chairman Eric Pearson and actually quote him -- unlike, let's say, Katie Thomas at the New York Times.

Which reminds me -- here at the CSC, we talk to Katie Thomas all the time, but we'll be damned if we can ever remember an instance where she bothered to quote us in her newspaper. Feel free to draw your own conclusions, but one wonders what it must be like to give the other side a fair shake at a newspaper that produces editorials like this one.

That wasn't the case at the Christian Science Monitor, where Amanda Paulson took some time to shed some additional light on where Title IX reform advocates are coming from:

Still, some critics of Tuesday’s decision say that the model survey was a useful way to gauge interest. They suggest that offering it as part of course registration, instead of by e-mail, might have dealt with the no-response issue.

In addition, they worry that the new rule will push more schools to use proportionality as the best defense against a lawsuit.

“What it boils down to is flexibility,” says Eric Pearson, chairman of the College Sports Council, who says he sees proportional compliance as little more than a quota system. In particular, he cites historically black colleges – where women often outnumber men 2 to 1 – as having a hard time with proportionality. And he worries about the lack of recourse that men have when their sports are cut, as was the case with the men’s wrestling team at Delaware State University two years ago. (The women’s equestrian team, eliminated at the same time, was restored following a lawsuit, but the wrestling team stayed on the chopping block.)

They say a picture tells a thousand words, so let me share one with you right now. Remember that Delaware State is an historically black college. Here's a picture of the equestrian team:

We should also thank Penny Starr, a reporter for CNS News Service, for giving the CSC some space to rebut Vice President Biden and Education Secretary Arne Duncan. The same goes for WSJ law blogger Ashby Jones as well as Walter Olson at Overlawyered.com.

All Signs Point To Title IX Rollback (Post Bumped)

Over the past couple of days, we've seen some definite signs that the Obama Administration is planning a major announcement concerning Title IX enforcement tomorrow afternoon in Washington, D.C. Last Thursday, Libby Sander at the Chronicle of Higher Education interviewed Russlyn Ali of the U.S. Department of Education's Office of Civil Rights, and she let drop the following tidbit:

A colleague and I took a quick trip over to the Education Department on Wednesday to interview Russlynn H. Ali, who heads up the department's Office for Civil Rights. That's the agency in charge of enforcing, among other federal statutes, Title IX of the Education Amendments of 1972.

During our 45-minute interview, Ms. Ali said she expects to step up enforcement of Title IX in coming months, and will soon issue guidance on a controversial 2005 policy clarification.

For those of you who need a hint, that's the model survey we're talking about.

Tomorrow afternoon (Tuesday) at 1:30 p.m. EDT, Vice President Joe Biden is scheduled to give a speech on Title IX on campus at George Washington University. Apparently, Biden will be introduced by Joy Cheek from the Duke University Women's Basketball team. Stay tuned for more details as they become available.

UPDATE: The news is official, the Department of Education is going to reverse the 2005 guidance. This is a real blow to college athletics, and portends even more cuts to men's athletic programs in the coming years. From the AP:

The U.S. Department of Education is repealing a Bush-era policy that some critics argue was a way to avoid complying with federal law in providing equal opportunities for female athletes.

Under the move, schools and colleges must now provide stronger evidence that they offer equal opportunities for athletic participation under the federal Title IX gender equity law.

It reverses a 2005 policy under former President George W. Bush that allowed schools to use just a survey to prove a lack of interest in starting a new women's sport and encouraged schools to consider a non-response to the questionnaire as disinterest.

"Discrimination continues to exist in college athletic programs - and we should be vigilant in enforcing the law and protecting this important civil right," U.S. Secretary of Education Arne Duncan said in a prepared statement.

Eric Pearson, Chairman of the CSC, was also quoted:

Critics of Title IX say revoking the policy will have a chilling effect on students expressing their opinions.

"The problem comes in because most athletic departments have more male than female athletes," said Eric Pearson, chairman of the College Sports Council, which takes issue with proportionality as a way of complying with Title IX.

"The disparity doesn't necessarily mean that there is discrimination," he said.

More later.

ANOTHER UPDATE: The New York Times has weighed in as well, with reporter Katie Thomas characterizing the use of model surveys as a "loophole," which is exactly how gender quota advocates normally describe it. So much for balanced reporting.

In any case, Mike Moyer of the National Wrestling Coaches Association is quoted:

“What better way to assess what sports men and women want to play than ask them?” said Mike Moyer, the executive director of the National Wrestling Coaches Association, which lobbied the department to allow universities to use the surveys. Moyer’s group has criticized Title IX for pushing universities to cut men’s wrestling programs and other teams with small rosters. He supported the 2005 policy but said he preferred requiring universities to survey men’s interests as well.

Still more, later.

MORNING UPDATE: We continue to see coverage of the impending announcement concerning the change in policy from OCR. In the meantime, the CSC has issued a press release concerning the change which I've reprinted below:

Department of Education Rolls

Back Title IX Reforms

CSC Says Action to eliminate student surveys is a

“Step backwards for everyone that cares about fairness in athletics.”

WASHINGTON, D.C. – April 20, 2010 – The College Sports Council denounced an effort by the U.S. Department of Education’s Office for Civil Rights (OCR) to undermine student interest surveys as a way to comply with Title IX. The decision by OCR comes just weeks after the US Commission on Civil Rights issued a report calling for Title IX reform, including surveys.

“At a time when the US Commission on Civil Rights is calling for reform of Title IX, this is a step backwards for everyone that cares about fairness in athletics,” said Jessica Gavora, the College Sports Council’s Vice President for Policy. In 2007, Gavora testified before the Commission and urged that the model survey be more widely adopted. “Students, women and men alike, are more than capable of expressing their interests, and especially when it comes to extracurricular activities on campus their voices should be heard,” Gavora said.

Ever since the Cohen v. Brown decision, schools have understood that sticking with the proportionality gender quota would make them safe from lawsuits. The 2005 clarification offered for the first time a model survey that schools could use to comply with Title IX by measuring the interest of their students.

“This reform rollback by the Obama Administration is a gift to the trial lawyers’ lobby and will mean that more sports teams will be eliminated like at Duquesne University where 4 men’s teams were recently terminated,” said CSC President, Leo Kocher.

“Surveys can give the students a voice in the decision making process of sports sponsorship. It appears that the Obama Administration has yielded to pressure from the NCAA and gender quota advocates in weakening the value of student interest surveys for Title IX compliance,” said CSC Chairman Eric Pearson.

“Instead of working with students to demonstrate how model surveys could work for everyone, the NCAA has actively undermined their use in order to silence the voice of the students, much as a majority of NCAA administrators tried to prevent Women’s Sand Volleyball from obtaining official designation as an emerging sport,” Pearson said.

More updates as they come in. Again, click here for the release.

USCCR UPDATE: Unlike much of the press herd that covers Title IX, Erik Brady from USA Today does a good job injecting balance into coverage of the issue. In his story about today's announcement, Brady has quotes from Pearson and Gerry Reynolds of the U.S. Commission on Civil Rights:

Eric Pearson, chairman of the College Sports Council, said in a statement: "At a time when the U.S. Commission on Civil Rights is calling for reform of Title IX, this is a step backwards for everyone that cares about fairness in athletics."

The civil rights commission released a series of recommendations on Title IX policy this month aimed at what it called an "unnecessary reduction of men's athletic opportunities." A key recommendation called on schools to use the model survey to measure the athletic interest and abilities of female students.

Gerald A. Reynolds, chairman of the bipartisan commission, was Assistant Secretary of Education for the Office for Civil Rights in the Bush administration from 2001 to 2003. He declined comment on the change in policy until the formal announcement but he spoke generally about why he believes the model survey is good policy.

"Instead of having an artificial presumption of what abilities and interest are, we take a common-sense approach," Reynolds said. "We ask students: Are you interested in athletics? And there are a series of questions that help us gauge their abilities. That is the main thrust of the approach.

"I think it has always been a mistake to assume that a bureaucrat can accurately gauge the level of interest and the athletic ability of men and women. Why not use a survey? What's the harm of asking students these questions?"

Reynolds said in the absence of evidence that students are being coerced to answer in a certain way or that the test is flawed or is an inaccurate gauge of interest and ability, "it is a very good way for settling this issue of what level of interest do men have versus women."

Eric Pearson also makes an appearance in a piece from the Chronicle of Higher Education:

Eric Pearson, chairman of the College Sports Council, an advocacy group for men's sports, said the reversal of the 2005 policy was "disappointing" and a blow to giving students more of a voice in colleges' decisions about which sports to sponsor.

"We see this as a setback," he said in an interview. "We were confident that schools could actually use the ... test and be confident that it could hold up in court."

NB: Sander calls us an "advocacy group for men's sports," despite the fact that the CSC has fought hard to preserve women's teams at a number of NCAA member institutions, most notably at James Madison University. Again, it's another instance of the press using the frame given to them by activists groups and inserting it into their coverage.

AFTERNOON UPDATE: Kudos to Bloomberg News for finding a place for CSC President Leo Kocher in their story about today's announcement. Elsewhere, one of the biggest quota cheerleaders, Christine Brennan, has weighed in with her two cents about how great a day it is for women's athletics. Read it if you must, but be sure to bring your barf bags if you do.

CAMPUS UPDATE: Our friend Allison Kasic just put some thoughts together on today's announcement over at Minding the Campus. The article is entitled, "Student Interest Surveys Are Not A "Loophole" in Title IX Enforcement."

The effective message from the Department of Education is clear: stay away from interest surveys. The move solidifies the dominance of Title IX's other compliance mechanism, proportionality---a method which favors rigid gender quotas over student interest. In other words, instead of eliminating a "loophole" in Title IX compliance, the Department of Education just eliminated the only common-sense mechanism that schools had to work with.

Thanks to Allison for the assist. And please check out another short post of hers at Phi Beta Cons.

YET ANOTHER UPDATE: Plenty of common sense from Neil McCluskey at the Cato Institute:

In announcing the logic-leaping change, Vice President Biden said it was a “no-brainer.” That’s true, but not in the way Biden intended.

The main problem, though, almost certainly isn’t that Title IX supporters can’t see how obvious and straightforward a survey is for assessing interest in playing sports. The main problem is likely that many supporters don’t actually want women to be able to express their interest, lest its relative paucity be revealed. Indeed, a survey would almost certainly show a big interest gap, as evidenced by three to four times as many men playing college intramural sports, or men flocking to sports sites on the internet while women clearly prefer social networking.

Of course, the fairest way to judge women’s interest in intercollegiate athletics isn’t a survey — which can’t easily capture intensity of interest – but letting women reveal their preferences by freely choosing between schools that offer lots of athletic opportunities and schools that don’t. And don’t say that that wouldn’t work because women would be systematically barred from the playing fields: Constituting nearly 57 percent of enrollment at four-year schools, colleges have huge incentives to offer women what they want. Which seems, sadly, to be exactly what Title IX supporters are afraid of.

Bingo. Here's a picture of Vice President Biden announcing the change:


I'll reserve comment for now, but please feel free to judge for yourselves.

MIKE MOYER UPDATE: WBUR-FM, an NPR station, also found the time to grab Mike Moyer on the change:

Mike Moyer, executive director of the National Wrestling Coaches Association, calls the announcement disappointing. Moyer has been outspoken in his criticism of what he calls the Title IX "numbers game." He thinks surveys are a perfectly reasonable way to assess female interest in sports.

Moyer continues to worry about what he calls "the carnage" or elimination that's happening to some men's sports because of current Title IX interpretation. His concern illustrates that despite dropping the 2005 rule, Title IX continues to be a work in progress.

I think I'd go a little further with that analogy. How about a "train wreck in progress?"

OUTRAGE UPDATE: Our friend Bob Button at Texas Swimming had this to say about today's decision:

Now, with the full support of the jackasses in Washington, D.C., folks like [Nancy] Hogshead-Makar can continue to win judgements throughout the land. All they need to do is find one disgruntled coach/athlete in an otherwise happy athletic department and away they'll go.

It's for the money - that's why all of this is so important...

That's another bingo moment. Anything we can do to keep lawyers employed has got to be a good thing, right?

USCCR Endorses Use of Model Survey in Title IX Compliance

Before the week was out, we wanted to make sure we shared some very good news that came courtesy of the U.S. Commission on Civil Rights just before the Easter holiday:

The U.S. Commission on Civil Rights has released a report on accommodation of athletic interests and abilities of college students under Title IX of the Higher Education Amendments Act of 1972, which prohibits discrimination on the basis of sex in any educational program or activity receiving federal funds, including athletics, and is enforced by the Department of Education. The Department's regulatory test for compliance (widely known as the "three-prong" test) requires: a) substantially proportional representation of men and women in athletic participation (considered a "safe harbor" from prosecution); or b) substantial progress in providing opportunities for the underrepresented sex; or c) adequate accommodation of the interests and abilities of the underrepresented sex in the institution's athletic offerings ("prong three").

The report is based on a briefing by a balanced panel of experts who debated, among other topics, the efficacy of the model survey guidance provided by the Department of Education in 2005 to help colleges comply with prong three of the test, and the ability of students to express their interests in athletics. The report includes discussions of the rationale for developing the model survey, including the need to provide an objective alternate to prong one, currently considered the only "safe harbor" from prosecution, which some witnesses alleged had resulted in men's sports being dropped.

The Commission found that the Department's 2005 model survey provides the best method available for achieving compliance under prong three, that students (including women) are fully capable of expressing their interests, and recommends that schools continue to use the survey to comply with Title IX rather than relying on mechanical compliance with proportional representation. The Commission also recommends that the regulations be revised to explicitly take into account the athletic interests of both sexes rather than just the interests of the underrepresented sex, restoring Title IX to its original goal of providing equal opportunity for individuals of both sexes.

Needless to say, this was very welcome news. Here's what CSC Chairman Eric Pearson had to say about the report:

“The U.S. Commission on Civil Rights’ recent recommendation to reform Title IX is consistent with the College Sports Council’s (CSC) position that all students, male and female, deserve equal protection under the law. The current regulations governing Title IX sanction discrimination against boys on the basis of their gender. The CSC believes, as does the Civil Rights Commission, that ‘the regulations for Title IX be revised to explicitly take into account the athletic interests of both sexes rather than just the interests of the underrepresented sex.’ It is simply common sense that schools should be permitted to survey all their students in order to determine student interests."

To read more about the report, click here for a story from USA Today:

The U.S. Commission on Civil Rights released a series of recommendations on Title IX policy Thursday aimed at what it called an "unnecessary reduction of men's athletic opportunities."

The commission recommended that schools use a model survey offered by the Department of Education in 2005, calling it "the best possible method" for measuring women's interest and abilities. The survey is one of three ways schools can meet the participation requirements of Title IX, the law that bans sex discrimination at schools receiving federal funds.

That model survey was blasted by women's groups when it was introduced. The NCAA asked member schools not to use it. Few have. Daniel Cohen, an attorney who was a panelist before the commission, said he knows of several schools that have used it, though he declined to name them.

"The commission concluded that a properly administered model survey with a high response rate can potentially help schools improve their Title IX compliance and may provide an objective alternative to proportionality for some schools," Cohen said.

Look for more on this issue from the CSC in the coming weeks.