One way for colleges to comply with federal gender-equity law — by surveying female students’ interest in sports — has rarely been used but still sparked intense debate at a briefing this month before the U.S. Commission on Civil Rights.
Although the commission has no legislative authority, gender-equity advocates worry that its recommendations will influence policy makers.
Two experts who testified at the briefing said the use of surveys would allow colleges to avoid offering women’s teams by manipulating measures of interest among female students.
But three others said conducting fair surveys would be a valid way of achieving gender equity under the law, because if women wanted to play, they would say so.
“Government should view women as thinking, discerning individuals capable of expressing and acting on their interests,” said Jessica Gavora, vice president of the College Sports Council, an advocacy group for men’s sports. Surveys of both male and female students, she said, would give colleges an objective measure of the interest they needed to meet.
Gauging Interest
Controversy over the use of an interest survey as a way to comply with Title IX of the Education Amendments of 1972, the law that bars sex discrimination at institutions that receive federal funds, began as soon as a model survey was introduced two years ago.
Under a three-part test for Title IX compliance that has existed since 1979, colleges may choose to follow the law by proving they are fully and effectively accommodating the interests and abilities of their female students. The model survey was issued by the U.S. Department of Education’s Office for Civil Rights as further guidance on that means of compliance, the so-called third prong of the three-part test.
David F. Black, deputy assistant secretary for enforcement at the Office for Civil Rights, and Daniel A. Cohen, a lawyer who specializes in Title IX, testified at the briefing, along with Ms. Gavora, in support of the survey.
“The additional clarification provides schools for the first time with a practical tool, a model survey they may now choose to use to assess athletic interest using effective, unbiased methods,” Mr. Black said.
“It makes prong three usable, and it makes prong three practical,” said Mr. Cohen. He countered a common criticism that the model survey, sent by e-mail, could end up ignored by students as spam by citing an Education Department guideline that if colleges choose to conduct the survey, they must do so in a manner sure to get a high response — as part of course registration, for example. (Mr. Cohen referred to one institution, which he declined to name, that had added survey questions about interest in athletics to its application for admission.)
Title IX Loophole?
Other panelists denounced the model survey as fundamentally flawed. Jocelyn Samuels, vice president for education and employment at the National Women’s Law Center, an advocacy group, argued that the use of a survey would unfairly shift the burden of civil-rights enforcement from institutions onto female students, who would have to prove their interest in order to be offered opportunities.
Judith M. Sweet, a consultant and former senior executive at the NCAA, which has urged its members not to use the survey, also testified against it. The survey “is contrived to show that females are not interested in participation,” she said.
Advocacy groups for gender equity have called the interest survey a Title IX loophole that will stall or reverse women’s progress in athletics. According to the model survey, they point out, a nonresponse counts as a lack of interest.
At least one member of the civil-rights commission shared some of the gender-equity advocates’ concerns about the survey.
Michael Yaki, a Democratic appointee to the bipartisan commission, argued that providing women with athletics opportunities is a fairer way to achieve gender equity than is measuring their interest.
Several of the commissioners, however, seemed to favor the survey as a fair way for colleges to measure interest — and then meet it — to comply with Title IX.
“Let’s ask the women, ‘Are you interested in participating in intercollegiate sports?’” said Gerald A. Reynolds, chairman of the commission and a Republican.
It is unclear what effect the briefing will have. In an interview afterward, Ms. Samuels, of the National Women’s Law Center, said she was worried about the tenor of the discussion. “The fact that the vast majority of the questions seemed to be affirmatively hostile to equal opportunity is deeply troubling,” she said.
The civil-rights commission will accept public comments through mid-June. In a few months, Mr. Reynolds said, he would present a report to the Education Department.
http://chronicle.com Section: Athletics Volume 53, Issue 38, Page A48
