Part II: Equality through three prongs

Guest Post From: Kristine Newhall

Last week marked the 39th anniversary of Title IX. A consistent message is sent every anniversary and this year was no exception: Title IX has done a lot for women; there is still plenty left to be done. True.

One of the many of the responses by those who remain skeptical about the law that mandates gender equity in education is “I like Title IX; I just don’t like the way it’s implemented.”

This sentiment is directed at the three-prong test which regulates how athletic opportunities are distributed. [It is not applicable to the other program areas, i.e., travel, quality of coaching, facilities, equipment.]

But dismantling the three-prong test is problematic for two reasons. One, given the history of the test and the reason for its implementation, calls to eliminate it seem like…well…sour grapes. Two, the three-prong test accommodates our changing cultural ideals and norms.

There is not widespread knowledge about how the three-prong test, instituted in 1979, came to be. As Bernice Sandler noted in her March 8, 2002 letter to the Chronicle of Higher Education it was advocated for by male athletic administrators, coaches, and university officials. And that is because, at the time, more men than women were attending college. Proportionality was created to protect men’s opportunities. It was seen as a far better option than the proposed 50/50 split of opportunities.

But since the 1990s women have comprised the majority of undergraduates. And the emergence of reverse discrimination arguments suggests that the philosophy of equity that inspired proportionality only holds true when men are in the more advantageous position in terms of numbers. Reliance on proportionality actually lead to the neglect of developing suitable measures for compliance with the other prongs, according to Susan Ware in her 2007 Title IX primer.

Schools don’t have to measure the distribution of opportunities solely by numbers. People have called proportionality the “safe harbor” of compliance. I call it the quick and dirty prong. Run the numbers. Make sure they match (or come close). The dirty comes when 1) sports get cut and 2) when schools lie about the numbers. (See the recent investigative reporting by the New York Times.)

The three-prong test allows for shifting in cultural norms—especially in prongs two and three. Prong two requires a history of expanding opportunities for women. So, for example, as more young women become involved in wrestling, more colleges will add women’s wrestling. This will help compliance with prong two. Prong three asks that schools meet the interests and abilities of its female student body. Administrators do not see this as a safe harbor because measuring interest is complicated and cannot be done using one survey sent out via email to enrolled undergraduates. We have to consider how both history and cultural expectations affect interest. We have to note that interest itself manifests differently across a variety of identity markers—not just gender.

It can be done. We should be developing responsible measures of interest. Girls and women are not inherently less interested in playing sports.

As we mark the 39th anniversary of Title IX, it’s important to note that the numerous attempts to weaken the legislation have failed. The tremendous backlash has not—thankfully—lead to the piecemeal dismantling of the law.

A culture’s laws reflect its values. This leads me to believe that a majority do not want to see the erosion of gender equity in sports that would result by eliminating the three-prong test.

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