The American Sports Council (formerly the College Sports Council) has sued the Department of Education in federal court, arguing that the enforcement of Title IX's three-prong test against high schools violations the U.S. Constitution's Equal Protection Clause. College Sports Council and other anti-Title IX organizations have challenged Title IX's constitutionality in the past, though never successfully. I predict that the court deciding this case will apply the same interpretation as those earlier decisions holding it was not unconstitutional for Title IX to offer a proportionality test as one of three options for compliance . Though those earlier decisions were all in the context of disputes about college sports, there is nothing about applying those arguments to the high school context that warrants a different result.
For more coverage, see this thorough post on Education Week's Schooled in Sports blog.
Showing posts with label CSC. Show all posts
Showing posts with label CSC. Show all posts
Thursday, July 21, 2011
Wednesday, February 09, 2011
CSC and Pacific Legal fight complaints
The College Sports Council, a group advocating for Title IX reform, and the Pacific Legal Foundation, a conservative legal group, are challenging the Title IX complaints filed by the National Women's Law Center last fall in 12 of the nation's schools districts.
PLF sent letters to the district offices of OCR suggesting that the 3-prong test does not apply to high school athletics. And CSC sent letters to the actual districts, targeted by NWLC for their especially disproportionate distribution of athletic opportunities, suggesting that the districts fight complaints.
Both organizations are claiming that high schools do not have to meet the 3-prong test and that application of the test to high school athletics might be unconstitutional--specifically that it violates the Equal Protection Clause.
Responses from the Department of Education and NWLC mention that this issue is moot; that PLF already raised it--two years ago--and that some courts have already applied it to high schools.
It will be interesting to see if the hand being offered by CSC to the affected districts will be taken by any of them in a potential fight with the Department of Education.
PLF sent letters to the district offices of OCR suggesting that the 3-prong test does not apply to high school athletics. And CSC sent letters to the actual districts, targeted by NWLC for their especially disproportionate distribution of athletic opportunities, suggesting that the districts fight complaints.
Both organizations are claiming that high schools do not have to meet the 3-prong test and that application of the test to high school athletics might be unconstitutional--specifically that it violates the Equal Protection Clause.
Responses from the Department of Education and NWLC mention that this issue is moot; that PLF already raised it--two years ago--and that some courts have already applied it to high schools.
It will be interesting to see if the hand being offered by CSC to the affected districts will be taken by any of them in a potential fight with the Department of Education.
Friday, February 29, 2008
College Sports Council Cites Lack of Proportionality at Historically Black Colleges
The College Sports Council (no fan of Title IX) earlier this week released a study about Title IX compliance at historically black colleges and universities. The results: 73 out of 75 of HBCUs fail the proportionality prong of the three-part test. This means that for nearly all HBCUs, the percentage of athletic opportunities for women is lower, in some cases much much lower, than the percentage of women on campus. According to CSC President Eric Pearson, "The purpose of this study is to show that schools like the HBCUs that want to attract more male students run into a virtual roadblock when it comes to complying with Title IXs proportionality standard...The CSC calls on the NCAA to support HBCUs use of surveys to comply with Title IX. HBCUs need the flexibility that surveys offer, if they want to use sports to increase male enrollment."
First, I think that some context is required to better frame the story of proportionality problem among HBCUs. According to a recent Women's Sports Foundation study, 87% of colleges and universities are not within three percentage points of proportionality. So while the nonproportionality rate among HBCUs is quite high (97%), it is important to remember that the vast majority of all colleges and universities are also out of compliance with that prong.
Next, I think CSC overstates the consequences of failing to comply with the proportionality prong. Proportionality is not the only way to satisfy Title IX. Most schools that don't satsify this prong (which is to say, most schools) are in compliance or claim they are in compliance under prong three: effectively accommodating the interests and abilities of the underrepresented sex. In the absence of a decision by a school to (a) cut a women's team or (b) turn down a request to add a viable women's team, there is very little reason to doubt such claims.
So why is the CSC arguing that HBCUs should have the NCAA's blessing to use interest surveys? Without getting in to the controversial aspects of the interest survey methodology that OCR endorsed in 2005 (WSF does a fine job of that here), I'll just say that an advantage of using the interest survey is, from a school's perspective, that it provides concrete, statistical evidence of compliance with prong three. This evidences give schools the confidence to add more sports for men -- even when those additions compound already existing inequities in the distribution of athletic opportunities. The CSC wants the NCAA to bless a practice that would (lawfully, to be sure) result in HBCUs making even fewer athletic opportunities available to female students.
It seems to me that this argument exploits HBCUs for their tendency to invoke support, thus strategically pitting race against sex in CSC's larger project of challenging proportionality and Title IX. The subtext of its press release is that if you are for HBCUs (i.e., if you are not a racist) you must be against Title IX. But the CSC's argument that HBCUs should have the NCAA's support in eluding proportionality trades in both racial and sexist stereotypes. Most obviously, the argument that HBCUs in particular need to offer sports to attract male students suggests that the only way to get black men to college is to offer intercollegiate sports. It also assumes that prospective female HBCU students are uninterested in, or undeserving of, athletic opportunities in comparable ratios to their male counterparts. HBCUs should be working just as hard as other schools to eliminate gender disparities in their athletic departments. The NCAA should continue to encourage all schools, including HBCUs, to forgo interest surveys and strive for gender equity.
First, I think that some context is required to better frame the story of proportionality problem among HBCUs. According to a recent Women's Sports Foundation study, 87% of colleges and universities are not within three percentage points of proportionality. So while the nonproportionality rate among HBCUs is quite high (97%), it is important to remember that the vast majority of all colleges and universities are also out of compliance with that prong.
Next, I think CSC overstates the consequences of failing to comply with the proportionality prong. Proportionality is not the only way to satisfy Title IX. Most schools that don't satsify this prong (which is to say, most schools) are in compliance or claim they are in compliance under prong three: effectively accommodating the interests and abilities of the underrepresented sex. In the absence of a decision by a school to (a) cut a women's team or (b) turn down a request to add a viable women's team, there is very little reason to doubt such claims.
So why is the CSC arguing that HBCUs should have the NCAA's blessing to use interest surveys? Without getting in to the controversial aspects of the interest survey methodology that OCR endorsed in 2005 (WSF does a fine job of that here), I'll just say that an advantage of using the interest survey is, from a school's perspective, that it provides concrete, statistical evidence of compliance with prong three. This evidences give schools the confidence to add more sports for men -- even when those additions compound already existing inequities in the distribution of athletic opportunities. The CSC wants the NCAA to bless a practice that would (lawfully, to be sure) result in HBCUs making even fewer athletic opportunities available to female students.
It seems to me that this argument exploits HBCUs for their tendency to invoke support, thus strategically pitting race against sex in CSC's larger project of challenging proportionality and Title IX. The subtext of its press release is that if you are for HBCUs (i.e., if you are not a racist) you must be against Title IX. But the CSC's argument that HBCUs should have the NCAA's support in eluding proportionality trades in both racial and sexist stereotypes. Most obviously, the argument that HBCUs in particular need to offer sports to attract male students suggests that the only way to get black men to college is to offer intercollegiate sports. It also assumes that prospective female HBCU students are uninterested in, or undeserving of, athletic opportunities in comparable ratios to their male counterparts. HBCUs should be working just as hard as other schools to eliminate gender disparities in their athletic departments. The NCAA should continue to encourage all schools, including HBCUs, to forgo interest surveys and strive for gender equity.
Thursday, July 12, 2007
USA Today Finds Disparity between NCAA and EADA Numbers
Under a federal statute called the Equity in Athletics Disclosure Act, colleges and universities must report to the government the number of male and female athletes participating in each sport they offer. Separately, the NCAA also requires that information as a condition for membership. Both the government and the NCAA are asking for the same information, but as USA Today reports today, institutions frequently report different numbers to each.
Sometimes schools count don't count athletes who have already been counted as participants in other varsity sports, even though both the government and the NCAA want to know the total number of participation opportunities rather than the number of individuals taking part. One compliance officer admitted to accidentally counting practice players for one source and not the other. Another source of error occurs in tallying up the gender breakdown of the general student body, the denominator in a proportionality calculation. Depending on who in the university is doing the counting, different definitions of "full time undergraduate" might be used.
The paper also quoted the president of the College Sports Council that these disparities support its position that Title IX hurts men's sports, a claim that contravenes data derived from government sources. But the USA Today researchers who looked at both government and NCAA data for all public Division I schools say that when there are disparities (which was the case for 53 of 96 schools), about half the time the NCAA data paints a better compliance picture, and half the time, the government data does. Based on this, I don't think that using one source or other can generate a political advantage.
Sometimes schools count don't count athletes who have already been counted as participants in other varsity sports, even though both the government and the NCAA want to know the total number of participation opportunities rather than the number of individuals taking part. One compliance officer admitted to accidentally counting practice players for one source and not the other. Another source of error occurs in tallying up the gender breakdown of the general student body, the denominator in a proportionality calculation. Depending on who in the university is doing the counting, different definitions of "full time undergraduate" might be used.
The paper also quoted the president of the College Sports Council that these disparities support its position that Title IX hurts men's sports, a claim that contravenes data derived from government sources. But the USA Today researchers who looked at both government and NCAA data for all public Division I schools say that when there are disparities (which was the case for 53 of 96 schools), about half the time the NCAA data paints a better compliance picture, and half the time, the government data does. Based on this, I don't think that using one source or other can generate a political advantage.
Friday, December 15, 2006
Bonnette Column Takes On Title IX Backlash
Reading Valerie Bonnette's recent column at insidehighered.com, I get the sense that she's more than a little bit tired of people blaming Title IX's proportionality prong for debilitating men's sports.
Bonnette, a former OCR official and currently a Title IX consultant, points out that 73% of collegiate athletic departments comply with Title IX by some means other than proportionality-- which generally means prong three, satisfying women students' interests and abilities in athletics. Now that OCR has watered down prong three compliance by allowing schools to relying on responses to an interest survey, we are left with echo chamber enforcement that in Bonnette's words, allows "institution officials to decide for themselves that they comply." Yet groups like IWF and CSC continue to insist that Title IX is forcing schools to eliminate men's teams.
(Of course, this isn't the first time in history that Title IX has been rendered toothless, yet neverthless blamed for reeking havoc on men's sports. As we've recently had the opportunity to recall, most cuts to nonrevenue men's sports like wrestling happened during a period in the statute's history when there was absolutely zero enforcement.)
Schools that forgo the interest survey route (which some would call an end-run) and instead strive for proportionality are making their own choice to commit to the type of equity proportionality requires. In my opinion, and Bonnette's too, this is the right choice, but it's no mere opinion that it is a choice. Schools who make that choice and then invoke the "Title IX made me do it" rhetoric as cover are misleading the anti-Title IX reformers and they're not doing Title IX any favors either.
Bonnette, a former OCR official and currently a Title IX consultant, points out that 73% of collegiate athletic departments comply with Title IX by some means other than proportionality-- which generally means prong three, satisfying women students' interests and abilities in athletics. Now that OCR has watered down prong three compliance by allowing schools to relying on responses to an interest survey, we are left with echo chamber enforcement that in Bonnette's words, allows "institution officials to decide for themselves that they comply." Yet groups like IWF and CSC continue to insist that Title IX is forcing schools to eliminate men's teams.
(Of course, this isn't the first time in history that Title IX has been rendered toothless, yet neverthless blamed for reeking havoc on men's sports. As we've recently had the opportunity to recall, most cuts to nonrevenue men's sports like wrestling happened during a period in the statute's history when there was absolutely zero enforcement.)
Schools that forgo the interest survey route (which some would call an end-run) and instead strive for proportionality are making their own choice to commit to the type of equity proportionality requires. In my opinion, and Bonnette's too, this is the right choice, but it's no mere opinion that it is a choice. Schools who make that choice and then invoke the "Title IX made me do it" rhetoric as cover are misleading the anti-Title IX reformers and they're not doing Title IX any favors either.
Friday, November 03, 2006
CSC Sponsors Rally of JMU Students
Insidehighered.com has this coverage of James Madison University students' anti-Title IX rally in Washington yesterday. Buried and unexplained in the report is a brief mention that the students' rally was "sponsored" by the College Sports Council and the Independent Women's Forum. (USA Today described the students rallying under the "auspices" of the CSC, "an advocacy group for men's sports.")
These two organizations have been opposed to Title IX long before JMU cut ten of its athletic teams (we've discussed CSC's anti-Title IX litigation here). This makes me question what it means for an organization to "sponsor" or provide "auspice" to a student rally. Students at JMU are understandably outraged by the loss of their teams. They are vulnerable and looking for something to blame. I happen to think that the blame cast on Title IX is misplaced, but that aside, and more importantly, I hope that these students are not being manipulated by the anti-Title IX agenda.
These two organizations have been opposed to Title IX long before JMU cut ten of its athletic teams (we've discussed CSC's anti-Title IX litigation here). This makes me question what it means for an organization to "sponsor" or provide "auspice" to a student rally. Students at JMU are understandably outraged by the loss of their teams. They are vulnerable and looking for something to blame. I happen to think that the blame cast on Title IX is misplaced, but that aside, and more importantly, I hope that these students are not being manipulated by the anti-Title IX agenda.
Thursday, September 28, 2006
Update on College Sports Council's Challenge to Title IX Regs
Last year, the anti-Title IX College Sports Council sued the Department of Education in order to challenge the constitutionality of the Department's "three part test" (which we've described here) as well the test's consistency with Title IX. The CSC also petitioned the Department to issue a new rule that would repeal the three-part test, and are appealing the Department's denial of that petition in the federal courts.
The lower federal court in D.C. rejected CSC's efforts on both fronts, and the CSC appealed to the U.S. Court of Appeals for the D.C. Circuit. On Tuesday, the D.C. Circuit affirmed in part and remanded in part the lower court's decision.
As for the direct challenge to the three-part test, the court held it had already affirmed the regulation's constitutionality and consistency with Title IX in its decision in National Westling Coaches' Association v. Department of Education. That decision not only has precedential, "stare decisis" effect on future similar cases like CSC's, the doctrine of res judicata also barred the members of the NCWA from joining the CSC's lawsuit and raising the same argument again, as five of the seven CSC litigants apparently did.
But as for the appeal of the Department's decision to deny the petition for rulemaking, the D.C. Circuit reversed the lower court's decision that the CSC had no standing and remanded the case back down to the lower court. There a federal judge will have to decide whether the Department was within its rights to decide not to initiate a rulemaking at CSC's request. But even with the remand, the CSC is not likely to prevail. As the D.C. Circuit noted, the district's court's review is “extremely limited” and “highly deferential,” and that "an agency’s decision not to initiate rulemaking will be overturned 'only in the rarest and most compelling of circumstances.'" An agency's decision to reject a petition for a rulemaking that would repeal a policy that has been relied on for 27 years and which has been repeatedly upheld by federal courts is not likely to count as rare and compelling.
The lower federal court in D.C. rejected CSC's efforts on both fronts, and the CSC appealed to the U.S. Court of Appeals for the D.C. Circuit. On Tuesday, the D.C. Circuit affirmed in part and remanded in part the lower court's decision.
As for the direct challenge to the three-part test, the court held it had already affirmed the regulation's constitutionality and consistency with Title IX in its decision in National Westling Coaches' Association v. Department of Education. That decision not only has precedential, "stare decisis" effect on future similar cases like CSC's, the doctrine of res judicata also barred the members of the NCWA from joining the CSC's lawsuit and raising the same argument again, as five of the seven CSC litigants apparently did.
But as for the appeal of the Department's decision to deny the petition for rulemaking, the D.C. Circuit reversed the lower court's decision that the CSC had no standing and remanded the case back down to the lower court. There a federal judge will have to decide whether the Department was within its rights to decide not to initiate a rulemaking at CSC's request. But even with the remand, the CSC is not likely to prevail. As the D.C. Circuit noted, the district's court's review is “extremely limited” and “highly deferential,” and that "an agency’s decision not to initiate rulemaking will be overturned 'only in the rarest and most compelling of circumstances.'" An agency's decision to reject a petition for a rulemaking that would repeal a policy that has been relied on for 27 years and which has been repeatedly upheld by federal courts is not likely to count as rare and compelling.
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