Good News and Bad News for Title IX

March 31, 2005

By Katy Litwak, Communications Intern

Women and girls received both good news and bad news this month on Title IX, the 1972 federal law advancing equal educational and athletic opportunities for female students. The Supreme Court's recent 5-4 decision in Jackson v. Birmingham Board of Education marked a huge victory for Title IX. The Court ruled that individuals who protest sex discrimination are protected from retaliation when their schools punish them for speaking out or taking action. As for the bad news, the Department of Education issued a new guidance that significantly weakens Title IX, making it easier for a school to claim that it is in compliance with the law.

"Feminists are thrilled about this very big victory for Title IX," said NOW Membership Vice President Terry O'Neill. "But with the Bush administration doing whatever it can to undermine this law, it's never completely safe."

Supreme Court Rules for Women and Girls

On March 29 the Supreme Court ruled that Title IX's "private right of action" includes claims of retaliation against individuals who make complaints about sex discrimination.

Roderick Jackson, a public high school physical education teacher and girls' basketball coach, was fired from his coaching position after complaining that his team was not receiving equal funding and equal access to athletic equipment and facilities. After Jackson brought this complaint to his supervisors, he began receiving bad evaluations and was eventually removed from his coaching duties, resulting in a loss of part of his income.

Jackson sued to challenge the school's treatment, but the federal district court in Alabama dismissed his complaint, maintaining that there was no private right of action for claims of retaliation under Title IX. The Eleventh Circuit Court of Appeals affirmed the dismissal, basing its decision in part on a 2001 Supreme Court ruling in Alexander v. Sandoval. In Sandoval, the Supreme Court held that individuals have no private right of action to enforce Title VI of the 1964 Civil Rights Act. However, the Supreme Court overturned the Eleventh Circuit's decision, arguing that "if retaliation were not prohibited, Title IX's enforcement scheme would unravel."

The ruling is important because it protects coaches, teachers and administrators who are often more likely than female students to recognize that sex discrimination is occurring and then demand that women's and girls' rights under Title IX be upheld. For a number of reasons, female students might choose not to make official complaints. Some women and girl athletes may fear rocking the boat and instead choose to focus on graduating from high school or college and moving on. Many will not speak up due to their lack of authority in the campus hierarchy.

"The Court has confirmed that people cannot be punished for standing up for their rights. This protection is not just critical for Title IX, but also for other bedrock civil rights laws," said Marcia D. Greenberger, president of the National Women's Law Center and one of Jackson's lawyers. Jackson's case now will return to federal district court in Birmingham, Ala., where he will try to prove he was fired in retaliation for his protests under Title IX.

Bush Administration Undermines Equal Opportunity

The right wing has been after Title IX since its inception more than 30 years ago. In 2002 the Bush administration's Commission on Opportunity in Athletics made several recommendations that would have significantly damaged Title IX, but most of their suggestions were withdrawn amidst much public protest. Now the Department of Education is following up by implementing one of the remaining recommendations, which may seem benign, but will ultimately disadvantage women and girls.

On March 18, the Department of Education (DOE) released an "Additional Clarification" that greatly weakens Title IX. Under the law, federally-funded schools must provide equal educational opportunities to female students, including equal opportunities to play sports. The education department's regulations give schools a "safe harbor," allowing a school to be deemed in compliance with Title IX if it meets any one part of a three-part test. With the DOE's new policy guidance, schools will now find it much easier to comply, while at the same time restricting athletic opportunities for young women.

The new guidance allows schools to show compliance with part three of the test—i.e., that they are "fully and effectively accommodating the interest and abilities of the underrepresented sex"—if they can provide evidence that their female students just aren't that interested in sports. Under the new guidance, this can be demonstrated through email surveys of female students. The result is that it will now fall to female students to show that: 1) there exists interest sufficient to sustain a female varsity team at a school, 2) female students have sufficient athletic ability to sustain an intercollegiate team, and 3) within the school's normal competitive region, there exists a reasonable expectation of intercollegiate competition.

This change in policy does not require schools to adhere to specific guidelines laid out in 1996, which state that multiple factors should be used to accurately measure students' interests in particular sports, including interviews with coaches, faculty and students, and women's participation in surrounding high schools and leagues.

Experts warn that the email survey, or "model survey," is inherently flawed. The DOE's clarification explains that schools may interpret a lack of response to the survey to mean a lack of interest in additional athletic opportunities. According to the National Women's Law Center, "surveys are likely to reflect existing discrimination against women and girls, who have not received and still do not receive equal sports opportunities. Women and girls might not express interest and ability in particular sports if they have not had the chance to play them."

Relying solely on email surveys and self-assessment also ignores the important opinions of coaches and administrators.

Even under pre-existing Title IX guidance women still lack equal athletic opportunities. Women make up half or more of students in high schools and colleges, yet they receive only about 41 percent of the sports participation opportunities. In addition, women make up 53 percent of the student body in Division One schools, but receive only 41 percent of the athletic opportunities, 36 percent of the athletic budgets, and 32 percent of the recruitment budget.

"The Bush administration is bent on making it easier for schools to discriminate on the basis of sex, rather than trying to strengthen Title IX," says O'Neill. "It is essential that we bring this to everyone's attention so that we can stand up for the equality of female students and demand that Title IX be improved, not undermined."