January 2 2011
In the latest issue of The Federalist Society journal Engage, Alison Somin has a good article, "The Obama Administration: Changing the Rules of the Title IX Game?" Somin provides a good primer on Title IX in the Obama administration, focusing on the rescission of the Model Survey, the controversy over cheerleading, and the attempted expansion of Title IX into the sciences (for IWF's coverage of these issues see here, here, and here). One thing that I would add to that list is the attempted expansion of Title IX's gender quotas into the high school level. As for the things that Somin covers, one point stands out as particularly cogent. While talking about the debate over whether cheerleading should count as a varsity sport or not, Somin says:
"It bears repeating that this question made it into the federal courts only because colleges want their numbers to come out right for substantial proportionality purposes. In a world in which substantial proportionality were less important--in one in which compliance under the accommodation prong was a more viable option for many universities--universities wouldn't need to count cheerleaders' heads toward their totals of female athletes. In that world, some young women might see competitive cheer as a feminist and empowering activity, while others would not. The federal courts would not need to wade into this particular controversy."
Like most things with Title IX, the cheerleading debate goes back to proportionality (the notion that the gender balance of athletes must match the gender balance of the total student population, i.e. 57 percent female enrollment means that 57 percent of varsity athletes must also be female). People can talk about other aspects of Title IX all they want, but at the end of the day everything points back to proportionality. The proportionality standard has an even greater stranglehold on schools now that the Obama administration took away the only viable alternative to the proportionality standard (the Model Survey). Unfortunately, that means that schools, athletes, and fans can expect more of the status quo from Title IX's perverse incentives: cuts, cuts, and more cuts.
But at least the primacy of proportionality has one positive implication: if politicians ever decide to provide much needed Title IX reform, it's pretty obvious where they should start.