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TITLE IX UNDER ATTACK AGAIN?
On
March 17, the Department of Education's Office for Civil Rights
(OCR) issued an "additional clarification" of its policy regarding
Title IX compliance.
In this letter, the OCR refers to a "model survey", which "institutions
can rely on as an acceptable method to measure students' interests
in participating in sports," as a way of clarifying prong three
of the three-prong test spelled out in Title IX's participation
requirement.
The three prongs used to evaluate Title IX compliance are:
- the percentage of male and female athletes is substantially
proportionate to the percentage of male and female students
enrolled at the school,
- the school has shown a history and continuing practice of
expanding participation opportunities for the underrepresented
sex, and
- the school is fully and effectively accommodating the interests
and abilities of the underrepresented sex.
Regarding prong three, the "model survey" being promoted by the
OCR will allow schools to survey their female students to determine
interest in sports, in order to determine whether the school is
fully and effectively accommodating their interests and abilities.
According to the Women's Sports Foundation, "The gist of the letter
is that schools in which females are underrepresented in athletics
compared to their proportion in the general student body. . . and
that have not demonstrated a history and continuing practice of
expanding opportunities for the underrepresented sex . . .would
be deemed in compliance with the law under Prong three of the athletic
participation provision if they simply e-mailed a 'model survey'
to current students to determine their interests and abilities and
found interest by the underrepresented sex to be lacking."
What's wrong with this approach? Just about everything. The Women's
Sports Foundation (WSF), in their response to the letter, makes
five key points about the misguided policy clarification.
1. A "Survey" Is An Invalid Measure of Interest in
Participation
WSF says, "Experts in the use of survey instruments have condemned
the use of surveys of interest - which measure attitude - as a way
to predict behavior."
"Given their historic and current exclusion from a fair share of
participation opportunities and this cultural bias, women are less
likely to profess an interest in sports, even if they are interested!
However, professing interest does not predict behavior and cannot
be used to predict actual levels of participation when nondiscriminatory
opportunities are made available."
2. Male Athletes Have Never Been Required to Prove Interest
In Order To Obtain Participation Opportunities
The "model surveys" will be sent by e-mail to students. The OCR
letter states, "Although rates of nonresponse may be high with the
e-mail procedure, under these conditions, OCR will interpret such
nonresponse as a lack of interest."
This means that if young women do not respond to their e-mail, this
will be interpreted as lack of interest in sports. Male athletes
do not have to fear losing sports participation opportunities for
not replying to their e-mail, nor do they have to prove their interest
in the first place.
3. Reliance on Existing Student Body for Assessment is
Wrong
WSF says, “In the most comprehensive and accepted case on
the topic, Cohen v. Brown University, a federal appeals court stated
that the type of survey the department has proposed to gauge compliance
under the third prong was ‘illogical’ and ‘circular’
in its reasoning.”
The court stated, “What students are present on campus to
participate in a survey of interests has already been predetermined
through the recruiting practices of the coaches.
What teams are established and can recruit or qualify for admissions
preferences has already been predetermined by Brown. Thus, the interest
present on campus is controlled by Brown; to then suggest that Brown
must only satisfy the relative interests of students present on
campus is circular.”
In other words, the students who are interested in sports are already
playing sports; they were recruited to play sports from their high
schools, not from the current student body.
4. Disincentive for Schools and Colleges to Develop Club
Sports
WSF says, "The letter explains that the presumption of compliance
can only be overcome if the OCR finds direct and very persuasive
evidence of unmet interest, such as if a school either discontinues
a viable existing team or if they fail to upgrade a club team to
varsity status when there is recent, broad-based petition from an
existing club team."
This means that a school will only be found noncompliant if an existing
varsity team is discontinued, or if a club team petitions for varsity
status, thus demonstrating interest and ability. However, if a club
team doesn't already exist, there is no way for a "broad-based petition"
to exist.
5. Model Survey as Sole Litmus Test Defies Current Legal
Authority
WSF says, "While every legal authority has held that this survey
practice cannot be made the sole litmus test for compliance under
Prong three of Title IX, the letter sets up just a situation, totally
reversing the current standard."
"Dependence on a single survey methodology also cancels the Department
of Education's own 1979 Policy Interpretation. . ." and "While a
student survey may be part of a remedy to determine what sports
to add when an institution's current program fails Prong Three,
it is not a proper test upon which to base compliance."
The clarification letter can be found online here:
http://www.ed.gov/about/offices/list/ocr/docs/title9guidanceadditional.html
The full user's guide and manual, including the survey, can be found
here:
http://www.ed.gov/about/offices/list/ocr/docs/title9guidanceadditional.pdf
The Women's Sports Foundation's position paper is here:
http://www.womenssportsfoundation.org/cgi-bin/iowa/issues/rights/article.html?record=1009
PLEASE NOTE: This directive is already in place, with no public
notice or comment.
In order to overturn the Department of Education's action, legislation
will be required. This can only happen if we call, e-mail or visit
our legislators!
You can send an e-mail from this site:
http://capwiz.com/wsf/mail/oneclick_compose/?alertid=7385331
Please use this form to write to your U.S. Senators and Representatives
to ask that they contact DOE Secretary Spelling immediately to ask
that the March 17 Title IX clarification be revoked.
Thank you!
NEW
TITLE IX RESOURCE
Visit
www.titleix.info for a new
site called, “I Exercise My Rights,” a public service
informational campaign to educate the public about all aspects
of Title IX.
Athletics is only one of ten key areas addressed by Title IX;
“I Exercise My Rights” provides resources for education
and advocacy.
ADVENTURE CLUB CALENDAR
Surfing
- May 21 Belly
Dancing - June 2
For more info, contact adventureclub@bodyelectric-sb.org
or 805.569.7144, ext. *2
ELLEN'S
JOURNAL
Part
three in a series, the following is an excerpt of the journal
of Ellen Durham, a woman who works full time, volunteers for Body
Electric, and is starting a new business on the side.
With our journal series we bring you the challenges and accomplishments
of an average woman: someone who, like all of us, balances a life
full of work, play, friends, family and occasional struggle.
We hope you find inspiration in their daily endeavors, and perhaps
decide to try something new and challenging yourself!
March 6th - So I am still working out! I am walking nearly
every day – and yesterday I went to the top of La Cumbre peak!
I hiked all the way up and back. Eleven miles! If my neighbors had
told me that I was going to be hiking eleven miles I am not sure
I would have gone, but I am glad that I did it – I am thrilled
to know I can do it – and I would do it again.
I went for a walk today to make sure that the muscles wouldn’t
tighten up too much. I feel like someone else is living in my body
– I mean, who would have thought I would one day be going
for a walk to relieve the tightness in my muscles?
I am also changing my food intake. I have a giant bowl of fruit
on the table and whenever I feel like snacking I go to the bowl!
I am eating better than I have in years and I am really enjoying
it.
March 17th - I have been walking all week – the outrigger
season has started and I am joining the women on the water this
Saturday. I am looking forward to getting out there again.
I’m shifting in size and had to make a trip to the store to
buy a smaller pair of jeans – a double luck week as I saw
the drafts for my new business website too. They look great and
I am hoping to launch the business in the next month or so.
It’s a bit nerve-wracking and it applies directly to my self-esteem
and fitness as there’s this part of me that peeks out at the
world and thinks, “Do I really deserve to run my own business
and am I crazy to think this will really work?”
I have a clipping near my bed that inspires me to work out –
It reads, ‘80% of women identified as key leaders in Fortune
500 companies played sports during their childhood.” I read
that just about every other day and think how much I learned from
playing – but did not realize it until I read that quote.
March 28th - I have not yet made it to outrigger practice
on the water – seems like between starting up my business,
working full time and trying to take care of myself I am running
out of time.
Soon I leave for vacation for a few days. It feels stressful getting
ready to go. I have all this stuff to finish up for the end of my
work quarter; my business is moving forward, plus caring for the
family and the dogs. I am clearly overwhelmed and in need of a vacation,
so why is taking one adding more stress?
April 2nd - There is no air here. I am in New Mexico visiting
my folks and the elevation is over 7,000 feet. Both Ray and I are
suffering from the thin air and being winded at climbing a flight
of stairs. I have been drinking water every hour to compensate for
the lack of air.
April 4th - We are back at sea level!
We went for a 3-mile walk right after having a quick snack so we
could stretch our legs and get some exercise. It feels great to
breathe deeply again and not have my asthma aggravated by the lack
of air.
April 9th - Yesterday I met a friend for coffee and we discussed
how what we see in the mirror isn’t what is really there.
How do we determine what we really see and what is real?
The weather lately has not been cooperating with my need to walk.
I know I could go to the gym and work out; the idea of working out
indoors away from the sunshine is not motivating to me.
April 18th - I was in the Bay Area most of last week and
got no real workout in.
I decided that since I couldn’t really work out, that I would
stand a lot during the daylong meetings. I read an article that
described the habits of couch potatoes; one set who stood more often
and walked to the corner market instead of driving maintained a
lower body weight overall.
It inspired me to stand in the meeting and take the long way to
the ladies room to make up for having to spend the day in meetings.
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