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Battle over high school girls sports participation levels far from over

After last week's column regarding Title IX's impact on opportunities for men in sports, I received an email from a representative of the College Sports Council - soon to be called the American Sports Council.

The CSC is a Washington, D.C.-based organization with a mission to preserve and promote the student-athlete experience.

The rep put me in touch with council president Eric Pearson, who filled me in on the organization's objections to an administrative complaint filed by the National Women's Law Center last November with the Office of Civil Rights.

The NWLC, also based in D.C., charges 12 school districts throughout the country - including locales in Chicago, Houston, New York City, Irvine, Calif., and Worcester, Mass. - with failure to provide high school girls equal opportunities to play sports in violation of Title IX, the law that prohibits sex discrimination in federally funded education programs.

According to the NWLC website, the complaints are part of its new campaign, 'Rally for Girls' Sports: She'll Win More than a Game,' to educate schools, the public and parents about the 'widespread inequities their daughters face in school sports programs, and to mobilize parents to press for change.'

The NWLC preceded complaints with the OCR in recent months from an anonymous source, alleging discrimination by dozens of school districts in the states of Oregon and Washington. Similar actions have been taken in other states as well.

'When we saw the NWLC complaint (against the 12 school districts), we knew there would be a tidal wave of complaints that will overwhelm schools across the country,' Pearson said.

Pearson stresses that his organization is not female-biased.

'We focus on the every-day athlete who plays a sport for his or her high school and college,' Pearson said. 'We advocate for male and female sports teams. We want to see more athletes competing and participating in extracurricular activities.'

The CSC is urging public schools nationwide to resist pressure from the NWLC to enforce gender quotas in high school athletics. The council believes applying the same standards used in college athletics for Title IX compliance to high schools is unconstitutional and could result in sidelining more than 1 million male athletes.

'It's a powder keg waiting to explode,' Pearson said.

The OCR, a federal bureau, responds to third-party complaints.

'You could complain about a team in Maine just because you're a citizen of the U.S.,' Pearson said. 'One person can create havoc. The schools have to respond and spend resources doing it. In these tough financial times, it doesn't make sense.'

Title IX mandates schools must comply with one of three requirements:

• The percentage of male and female athletes are about the same as the percentage of male and female athletes enrolled at the school.

• the school has a history of expanding opportunities for girls who have been excluded from sports.

• The school is meeting the athletic interests and abilities of the girls.

The CSC, backed by the Pacific Legal Foundation, has concluded that Title IX's three-part test does not apply to high school. The council has contacted the 12 school districts that were initially targeted last November to advise them of the legal conclusion and urge them to fight the complaints.

'We take issue with the proportionality in particular,' Pearson said. 'The other two prongs pretty much are just a step toward proportionality. Proportionality is the only one that holds up in court.'

The three procedures that can affect schools in regard to Title IX non-compliance, Pearson said, are a lawsuit, an OCR complaint and NCAA pressure. Over the past three decades, colleges have reacted in part by eliminating men's programs - often wrestling, swimming, tennis, track and field and/or baseball - while pumping resources into women's programs.

'The result is it has driven up expenses and coaches salaries in, for instance, women's basketball,' Pearson said. 'They're the biggest money-loser of any program in college sports right now.'

In the case of the recent OCR complaints, 'third parties can come in and almost harass these schools,' Pearson said. 'The smaller the school, the less resources they have to fight back.

'We're trying to provide some guidance,' he said. 'We responded to the NWLC and told the schools we have a contrary view to applying the three-part test to high schools, which are concerned about being sued. The OCR can make recommendations, and it could be a bull's-eye on the schools' backs.'

Pearson said Title IX regulations designate the three-part test for colleges only.

'We maintain what they're doing is contrary to the mandate,' he said. 'We're the only ones who are saying, 'Wait a minute, you can't apply this to high school.'

'We're always concerned about programs being eliminated. In the past few years, Title IX has mainly impacted in a negative way at the college level. We've been saying since 2007 that the application of the three-part test for the high school will lead to the elimination of some activities. We are going to challenge the application of the three-part test in every way we can.'

Until recently, complaints filed with the OCR dealt more toward issues regarding facilities and team support.

'For example, there were a lot of complaints about softball fields being upgraded to be on a par with baseball fields,' Pearson sad. 'That part of it, we support. In theory, we support Title IX. We don't believe anybody should be discrimated against because of gender. The law is good in that it ensures women's teams get equal treatment. We don't think girls should have to change in a janitor's closet.'

In the last year, the OCR has taken it upon itself to rule on proportionality.

'The federal government is just presuming they can do this,' Pearson said. 'They are overreaching, and it has created a lot more harm that good. It has even hurt women's teams. Small-rostered teams have been dropped because of proportionality.'

The proportionality part of the three-pronged test, Pearson said, is designed for college athletics. The gender ratio of a school's enrollment must mirror the gender ratio of the varsity athletes.

One of the problems is that the current ratio of college students nationwide is 57 percent female, 43 percent male.

'If a school's proportion of female-to-male athletes doesn't fall within one percent of that ratio,' Pearson said, 'it is in danger of being sued.'

The average ratio of student population at the high school level across the country is closer to 50-50. If the OCR acts favorably to the recently filed complaints, 'you would have to eliminate a million male athletes,' Pearson said.

'This is going to be worse than college,' he said. 'In college, schools are trying to get to proportionality by adding women's teams with scholarships. In high schools, especially small ones, you have limited student bodies. You don't have scholarships. You don't have recruiting."

Pearson points out that, in U.S. high schools, female students outnumber male students in participation in all extracurricular activities except sports.

'Girls are choosing to take part in newspaper, yearbook, dance team, cheer, and those don't count for Title IX,' he said. 'How do schools get those extra female athletes? If they don't achieve 50-50, they're going to have to cut boys' opportunities. That's what we're going to start seeing in the next few years.'

When I asked Pearson if this issue might end up in court, with the CSC taking on the NWLC, he declined comment. At this point, he said, the council is merely encouraging high schools to fight back.

'Right now, all we can do is provide guidance to the high schools,' he said. 'We're hoping they in turn will say, 'We agree with you, we don't cut boys from the soccer, wrestling and tennis teams just to get to 50-50.'

'Our position is, the law states clearly you cannot discriminate on the basis of gender. That is exactly what's going to happen (to boys) if they cut on the basis of gender. We are trying to reform the regulations, not get rid of the law.

'We're looking for schools that don't want to be forced to apply proportionality. We need a tea party in the sports world.'

If the trend were allowed to continue, Pearson said, 'this is just the beginning of what is going to be a long, painful process. It will inevitably result in eliminating opportunities for boys.'

On Friday, I spoke with Neena Chaudhry, senior counsel for the NWLC and its chief Title IX expert. I asked for her reaction to the CSC's urging of high schools to resist her organization's complaints with the OCR regarding Title IX.

'We filed a complaint because schools' own data shows they're not providing equal opportunities to girls,' Chaudhry said. 'We would urge schools to work with the (OCR). We're hoping it leads to resolution providing girls an equal opportunity to play sports.'

As for the CSC's contention that applying the same standards used in college athletics for Title IX compliance to high schools is unconstitutional, Chaudhry said, 'The courts have consistently applied Title IX to the high schools as well as colleges. It applies to all levels of education. (The CSC is) wrong in (its) legal analysis.'

It's a matter of interpretation, contends the CSC, which refers to the 'Scope of Application' clause in Title IX from the U.S. Department of Education, stating that it is 'designed specifically for intercollegiate athletics. Its general principles will often apply to club, intramural and interscholastic programs ... the policy interpretation MAY be used for guidance by the administrators of such programs when appropriate.'

'That leaves a lot of gray area,' Pearson contended. 'Complaints are being filed, implying schools must comply with the three-part test. They are bullying high schools into their interpretations.'

If 57 percent of a student body is female, I asked Chaudhry, does that mean roughly 57 percent of the school's student-athletes should be female?

'Schools have a responsibility to provide equal opportunities,' she said. 'Beyond the proportionality (prong), there are two other ways to show they're consistently showing progress.'

Told that the CSC claims that proportionality is the only prong that has stood up in court, Chaudhry said, 'That's not true. The courts have consistently upheld the validity of all three parts.'

The CSC contends the precedent was set with the Brown University vs. Cohen case of 1995 in the U.S. Court of Appeals. The court essentially ruled that Brown was out of compliance because women comprised 35-40 percent of the school's varsity athletes but 50 percent of the undergrad enrollment.

In 1996, the Clinton administration issued clarification to the regulation that the proportionality prong is, in the words of Pearson, 'a safe harbor.'

What's it has meant at the college level is a quota system, with administrators having to look to cut men's programs to balance the ratio.

'I don't think Title IX has caused the elimination of male teams or athletes,' Chaudhry countered. 'It's a flexible law. It has three different ways schools can comply.

'Women's and girls' numbers are still not as high as the male numbers, though they've grown consistently over time. We still hear regularly from kids about different treatment, such as softball fields compared to baseball fields. Nobody wants anything to be taken away from men or boys, but Title IX has become a scapegoat for continuing to spend a lot of money on men's sports, typically at the college level.

'On the average, 75 percent of the men's budget is going to football and basketball. That's their prerogative, but it's hard to blame the women's teams for complaining about getting 30 percent of the overall budget. It's a civil rights law, anyway. Money is not a defense to providing unequal opportunities.'

I told Chaudhry I'm not convinced women have the same interest in participating in sports as men.

'I don't think history proves that out,' she said. 'The numbers have consistently increased through the years as they are provided with more opportunities.

'Schools can make choices as to how they (come into compliance) with Title IX. (Men's and women's programs) don't have to be mirror images, but schools have to take a hard look at what they're doing and why, instead of blaming Title IX.'

I'm hoping high school administrators take heart in the CSC's stance that Title IX's three-part test doesn't apply at their level. I'm hoping they'll continue to provide ample opportunities for girls to play sports but won't feel bound by the proportionality rule or pressured by the OCR complaints.

I'm probably whistling in the wind.

'High schools have a greater fear of litigation than colleges because they have smaller budgets,' Pearson said. 'They live in fear that if they're sued, they'd lose in court. That's the glaring problem.'

It won't be long, it appears, before we'll see a Title IX court case on high school sports opportunities for girls.

'It's on the horizon,' Pearson predicted. 'The day of reckoning is coming soon. Very soon.'