New Title IX Test:

The Sports Law Blog has a post detailing the Education Department's new, and potentially controversial, Title IX policy. The change, detailed in this letter, should reduce the pressure on univeristies to comply with Title IX by eliminating male athletic teams.

Under the old policy, schools were encouraged to ensure that the male-female ratio among athletes was roughly proportional to the male-female ratio of the student body. According to Title IX's critics, this induced many schools to eliminate male teams and athletic programs so as to bring the overall numbers into line. Showing proportionality in athletic opportunities, measured by the number of athletes participating in university-sponsored programs, was the easiest way to demonstrate compliance.

Under the new policy, as I understand it, schools will be able to demonstrate compliance through the use of on-line surveys that demonstrate they are "fully and effectively" accomodating the athletic interest of female students. This means that at schools where there is not a great demand among women for athletic opportunities, there will be less pressure to create proportionality of athletic programs. If properly implemented, the policy will ensure that athletic opportunities are the result of actual student demand, and not bureaucratic bean-counting.

For more on the new policy, and the emerging opposition to it, see here.

Tempest Over Title IX:

The new Title IX policy is drawing fire from both expected and unexpected quarters. Sports Law Blog has a round up here. Feminist groups are predictably upset with the change because it will, in their eyes, reduce the pressue for proportionality in university athletics. Apparently the NCAA is not too pleased with the change either.

The potential use of online surveys seems to be a big sticking point. Some critics of the policy note (rightly) that online surveys are notoriously susect means of gauging public sentiment. USA Today's Christine Brennan fears the use of surveys will water down Title IX. Here's the response Sports Law Blog's Greg Skidmore:

if you have enough of an interest to play a varsity sport, you also should be able to answer and return a survey. The federal government should ensure that universities do not avoid high answer rates through conspiratorial procedures, but barring this, online surveys are the wave of the future.

That sounds about right to me. Part of the problem with online surveys is that they don't get an unbiased sample of respondents. But that's not a problem here insofar as the surveys are trying to measure the depth and intensity of demand for greater female athletic opportunities. Given all of the problems the old rules seem to have created, it seems to me this new, more flexible policy is worth a shot (assuming, of course, the federal government should have much to say about college athletics in the first place).

Title IX Protects Whistleblowers:

Today's Supreme Court opinion in Jackson v. Birmingham Board of Education holds, 5-4, that Title IX protects whistleblowers who accuse their universities of gender discrimination from retaliation. Justice O'Connor wrote the majority opinion. Justice Thomas wrote a dissent. The Associated Press reports on the decision here.