Title IX: A Step Towards Less Regulation?

The mainstream media has gotten word of the Title IX story and has begun writing on it. Juan Non-Volokh has comments and Women's Hoops, which has a number of great links on the story, quotes from this USA Today article:

Cary Groth, the athletics director at Nevada-Reno, was another of the 15 Title IX commissioners. She recounted a story from the commission hearings that she said was "staggering." The Illinois high school athletic association said it sent out surveys asking girls if they would be interested in playing volleyball. The surveys came back showing little or no interest in the sport. Lacking confidence in their own abilities, perhaps, and never having played the sport before, the girls by a resounding margin said, no, they didn't have any interest in volleyball.

But the athletic association, seeking more opportunities for female athletes, took it upon itself nonetheless to start volleyball for high school girls in Illinois. And, wouldn't you know, volleyball became one of the state's most popular girls sports, with more than 300 high school teams in the state.

"If they had judged by the survey," Groth said, "they would have thought there was no interest."

At first blush, this evidence seems compelling. But it fails to take into account that it was a survey of high school students, not college students. I do not have any empirical evidence for this, but my own experience has shown that interest for most sports is developed during high school. Most sports are only offered on the high school level, and it is in high school that skills develop and athletes begin to come into their own. If a high school does not offer a sport, the chances are good that a student will not develop an interest.

The same does not hold true for college. Most students have explored a range of athletic opportunities before coming to college. In addition, any student that has no previous interest or experience in a sport is not likely to be able to play that sport at the varsity level in college. Obviously, there may be exceptions, but the same dangers seen in the high school survey do not seem to arise in the university context.

Now, one criticism that has been raised and seems more cogent is the question of the burden of proof. Under prong 3, the burden of proof has always been on the school to show "full" and "effective" accommodation. The online survey seems to be the red herring of the new policy interpretation. The real change is the shifting burden of proof. Under the new prong 3, a school using the model survey will be presumed to be in compliance with Title IX. The burden will then shift, to the federal government or to the students, to show by a preponderance of the evidence that a school is not in compliance.

The presumption of compliance can only be overcome if OCR finds direct and very persuasive evidence of unmet interest sufficient to sustain a varsity team, such as the recent elimination of a viable team for the underrepresented sex or a recent, broad-based petition from an existing club team for elevation to varsity status.

Reasonable minds can differ about the merits of this shifting of burden of proof. The administration seems to be saying that Title IX does not need to be as stringent as in the past, due to the incredible popularity of women's sports that is not likely to wain. Females make up nearly 60 percent of college students -- they will migrate to the schools that provide equal opportunities for women. On the other hand, women's rights groups will argue that progress has been made but equality has not been achieved. Weakening Title IX could reverse the progress that has already been made.

Congress passed the anti-discrimination statutes with the hope that one day, they would no longer be needed and could be allowed to peacefully fade away. Barring intervention by the courts (which is highly unlikely), it will be at least three years until another party is in the White House and this new policy can be revisited. Thus, there will be ample time to evaluate the change and monitor the state of gender equality in this country, in athletic and non-athletic contexts. At the end of this three years, society can then determine if Title IX requires a re-strengthening, or perhaps, if the proper move is another step towards sunset.

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