Neena Chaudhry, Senior Counsel and Director of Equal Opportunities in Athletics

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

Three years ago today, effectively in the dark of night, the U.S. Department of Education weakened Title IX’s requirement that schools provide women and girls with equal opportunities to play sports.  Why would the agency deal such a blow to the very law it is charged with enforcing? Understanding that requires us to go back to 2002, when the Department established, with a name of which George Orwell would have been proud, a “Commission on Opportunity in Athletics” in response to claims that Title IX was hurting men’s teams. Its purpose was to determine whether current standards for measuring equal participation opportunities should be revised, and - lo and behold – it made recommendations for extensive changes that would have gutted the law. But after witnessing a massive outcry in defense of the law, the Department decided not to change any of the standards (oh, and there was that pesky issue of an upcoming election and polls showing how popular Title IX is) and instead promised to enforce the law.

But this promise was short-lived. On March 17, 2005, without any notice or opportunity for public input, the Department issued an “Additional Clarification” of the Title IX participation requirements and changed the standards that had been on the books for decades. The Clarification allows schools to show that they are fully meeting their female students’ interests in sports—one avenue for compliance—simply by sending an email survey to all female students and then claiming that a failure to respond indicates a lack of interest in playing sports. Prior standards made clear that schools had to look at other indicators of interest – such as participation rates in high schools in the relevant area – in order to demonstrate compliance.