Tinkering With Title IX

by Neena Chaudhry, Senior Counsel
National Women’s Law Center

This post is part of a series on the final days of the Bush Administration.

The Department of Education is at it again. Without any notice or opportunity for public input, its Office for Civil Rights has issued guidance to help schools decide which athletic activities they can count for Title IX compliance purposes. Sounds harmless, right? The Department goes on to say that the guidance does not represent a change in OCR’s policy under Title IX and simply represents its current thinking on this topic.

Danger, Will Robinson, danger! This is the same Department of Education that a few years ago, also without any warning, issued a “Clarification” that weakens Title IX by allowing schools to show that they are providing equal participation opportunities for women and girls simply by sending an e-mail interest survey to female students and interpreting a lack of response as a lack of interest.

Sticking with the law’s participation requirement, the Department’s focus this time is on which athletic activities count as sports for purposes of determining whether a school is providing equal participation opportunities. The question often arises about activities such as cheerleading, which are athletic but have not typically met the Department’s criteria for being counted as a sport under Title IX. Since 1975, the Department’s policy has been that cheerleading, drill teams and the like are presumed not to be sports under Title IX because, among other things, their primary purpose is to support other teams, not to compete. If, however, a school could show otherwise (i.e., if a school formed a competitive cheer squad whose function was solely to compete) and meet other factors set forth by the Department, then such an activity might legitimately be counted as a sport.

The Department’s new guidance reverses this presumption and effectively says that an activity will be presumed to count as a sport under Title IX when organizations to which the school belongs (e.g., NCAA, state athletic associations) count it as such. The problem with this seemingly subtle shift in position is that in practice it will likely result in associations and schools trying to count activities as sports even though they do not actually meet the factors listed in the guidance for being considered a sport. Most institutions are still not providing girls with equal athletic opportunities. But instead of addressing that problem, the Department’s new guidance opens the door for schools to try to claim that they are providing girls with more opportunities to play sports than they really are. Of course, institutions can still be challenged for counting something as a sport that doesn’t meet the factors listed in the guidance. But putting the burden on girls to challenge their schools makes it harder for them to get the equity that the law guarantees.

What a shame that the Department continues to launch under-the-radar attacks on Title IX, having previously attempted to publicly weaken it through its 2002 Commission on Opportunity in Athletics and being forced to retreat after the massive public outcry in support of the law. Imagine how much more progress we could make if the Department of Education looked for ways to fulfill its responsibility to enforce Title IX.

For more on the Bush Administration’s latest proposals that would diminish women's rights and opportunities, visit NWLC’s website.