U.S. Commission on Civil Rights The U.S. Commission on Civil Rights is an independent, bipartisan agency established by Congress in 1957. It is directed to: Investigate complaints alleging that citizens are being deprived of their right to vote by reason of their race, color, religion, sex, age, disability, or national origin, or by reason of fraudulent practices. Study and collect information relating to discrimination or a denial of equal protection of the laws under the Constitution because of race, color, religion, sex, age, disability, or national origin, or in the administration of justice. Appraise federal laws and policies with respect to discrimination or denial of equal protection of the laws because of race, color, religion, sex, age, disability, or national origin, or in the administration of justice. Serve as a national clearinghouse for information in respect to discrimination or denial of equal protection of the laws because of race, color, religion, sex, age, disability, or national origin. Submit reports, findings, and recommendations to the President and Congress. Issue public service announcements to discourage discrimination or denial of equal protection of the laws. Members of the Commission Gerald A. Reynolds, Chairman Abigail Thernstrom, Vice Chair Todd Gaziano Gail Heriot Peter N. Kirsanow Arlan D. Melendez Ashley L. Taylor, Jr. Michael Yaki Martin Dannenfelser, Staff Director U.S. Commission on Civil Rights 624 Ninth Street, NW Washington, DC 20425 (202) 376-8128 (202) 376-8116 TTY www.usccr.gov This report is available on disk in ASCII Text and Microsoft Word 2003 for persons with visual impairments. Please call (202) 376-8110. TITLE IX ATHLETICS: ACCOMMODATING INTERESTS AND ABILITIES A Briefing Before The United States Commission on Civil Rights Washington, DC Briefing Report Table of Contents v Table of Contents Executive Summary.………………………………………………………………………...1 Findings and Recommendations…………………………………………………………….3 Summary of Proceedings…………………………………………………………………....5 Daniel A. Cohen………………………………………………………………………….6 Jessica L. Gavora………………………………………………………………………... 8 Jocelyn F. Samuels...……………………………………………………………………11 Judith M. Sweet………………………………………………………………………....14 David F. Black..................................................................................................................16 Discussion………………………………………………………………………………….18 Administration of the Model Survey, Its Use and Response Rate………………………18 Surveys and Compliance under Prong Three……………………………………………22 Opposing Views on the 2005 Additional Clarification and Proportionality…………….24 Men‘s and Women‘s Interest in Participation in Sports………………………………...28 Impact of Title IX, Sports Elimination, and Worldviews.................................................29 Statements………………………………………………………………………………….33 Daniel A. Cohen…………………………………………………………………………33 Jessica L. Gavora………………………………………………………………………...46 Jocelyn F. Samuels………………………………………………………………………50 Judith M. Sweet….………………………………………………………………………58 Stephanie J. Monroe.…………………………………………………………………….67 Public Comments…………………………………………………………………………..75 American Association of University Women…………………………………………...75 Eagle Forum……………………………………………………………………………..76 The Independent Women‘s Forum………………………………………………………76 Women‘s Sports Foundation…………………………………………………………….77 National Coalition for Women and Girls in Education………………………………….78 Don Sabo and Christine H. B. Grant…………………………………………………….79 Dolores Halls, Anne-Marie Mallon, Majorie Mead, Valerie McNay, Nancy Mion, and..... Virginia Ralston………………………………………………………………………….81 vi Title IX Athletics: Accommodating Interests and Abilities Commissioner Statements and Rebuttals………..…………………...………………………82 Abigail Thernstrom, Vice Chair….……………………………………………………...83 Arlan D. Melendez and Michael Yaki (Dissent)…………………………………………88 Arlan D. Melendez and Michael Yaki (Rebuttal)………………………………………..89 Speaker Biographies……………………………………………………………………….105 Daniel A. Cohen…..…….…………………………………………………………….…105 Jessica L. Gavora….….……………….…………………………………..……………..105 Jocelyn F. Samuels……….………….…………………………………………………...106 Judith M. Sweet………………………………………………………………………….106 David F. Black…….….………………………………………………………………….107 Appendix A: Further Clarification of Intercollegiate Athletics Policy Guidance Regarding IX Compliance from Gerald Reynolds, Assistant Secretary for Civil Rights, U.S. Department of Education, Washington, DC, July 11, 2003….…………….....108 Appendix B: Additional Clarification of Intercollegiate Athletics Policy: Three- Part Test, Part Three, from James F. Manning, Delegated the Authority of the Assistant Secretary for Civil Rights, U.S. Department of Education, Washington, DC, March 17, 2005………………………………………………………………………...111 Appendix C: Clarification of Intercollegiate Athletics Policy Guidance: The Three- Part Test, Norma V. Cant, Assistant Secretary for Civil Rights, U.S. Department of Education, Washington, DC, Jan. 16, 1996………………………………………………...113 Appendix D: Limitations of the U.S. Department of Education‘s Online Survey Method for Measuring Athletic Interest and Ability on U.S.A. Campuses, Don Sabo, Ph.D., and Christine H.B. Grant, Ph.D., June 2005……………………………….....128 Appendix E: Go Out and Play: Youth Sports in America, Executive Summary, Women‘s Sports Foundation………………………………………………………………..135 Appendix F: Gender Equity: Men‘s and Women‘s Participation in Higher Education, U.S. Government Accountability Office Report (GAO-01-128) to the Ranking Minority Member, Subcommittee on Criminal Justice, Drug Policy and Human Resources Committee on Government Reform, U.S. House of Representatives. Washington, DC, Dec. 2000…………………………………………...…141 Appendix G: Who‘s Playing College Sports? Trends in Participation, Executive Summary, John Cheslock, Ph.D., Women‘s Sports Foundation, June 5, 2007….………....143 vii Appendix H: User‘s Guide to Developing Student Interest Surveys Under Title IX, U.S. Department of Education, March 2005…………………………………...…173 Executive Summary 1 Executive Summary Title IX of the Higher Education Amendments Act of 1972 prohibits discrimination on the basis of sex in any education program or activity receiving federal financial assistance, including athletics. Since 1979, one way in which eligible educational institutions can show compliance with Title IX is by demonstrating that the institution‘s present program ―fully and effectively‖ accommodates the ―interests and abilities‖ of the sex that is underrepresented among intercollegiate athletes. Eligible educational institutions could also demonstrate compliance by either providing intercollegiate level participation opportunities for male and female students in numbers ―substantially proportionate‖ to their respective enrollments or by showing a ―history and continuing practice‖ of expanding these opportunities in a manner demonstrably responsive to the developing interest and abilities of the members of the underrepresented sex. The Office for Civil Rights (OCR) of the U.S. Department of Education is responsible for enforcing Title IX and issued further guidance on the ―interests and abilities‖ compliance option in March 2005. Under this guidance, an institution will be found in compliance with this option unless there exists a sport(s) for the underrepresented sex for which all three of the following conditions are met: 1) unmet interest sufficient to sustain a varsity team in the sport(s); 2) sufficient ability to sustain an intercollegiate team in the sport(s); and 3) reasonable expectation of intercollegiate competition for a team in the sport(s) within the school's normal competitive region. Thus, schools are not required to accommodate the interests and abilities of all their students or fulfill every request for the addition or elevation of particular sports, unless all three conditions are present. This guidance also included a model survey instrument to measure student interest in participating in intercollegiate varsity athletics. When this Model Survey indicates insufficient interest to field a varsity team, OCR will not exercise its discretion to conduct a compliance review of that institution‘s implementation of the three-part test. This guidance was issued at a time when critics of Title IX claimed that rigid compliance forced the cancellation of many educational programs or teams for men, as many schools demonstrated Title IX compliance through ―substantial proportionality.‖ The 2005 guidance also prompted a strong and often negative reaction from the National Collegiate Athletic Association and many women‘s groups. In response, the U.S. Commission on Civil Rights assembled a panel of experts on May 11, 2007 including a U.S. Department of Education official, to discuss the guidance, the Model Survey‘s strengths and weaknesses, any findings emerging from institutions‘ use of the survey, and whether compliance with Title IX had improved over time. The Commission received oral and written testimony from Daniel A. Cohen, an attorney specializing in Title IX cases; Jessica Gavora, vice president of the College Sports Council; Jocelyn Samuels, vice president for education and employment at the National Women‘s Law Center; Judith Sweet, representing the National Collegiate Athletic Association (NCAA); David Black, then-deputy assistant secretary for enforcement of the U.S. Department of Education‘s Office for Civil Rights; and Stephanie Monroe, Assistant Secretary, Office for Civil Rights, United States Department of Education. 2 Title IX Athletics: Accommodating Interests and Abilities All five panelists fielded additional