“Title IX: A Step Toward Less Regulation?,” by Greg, Sports Law Blog, 24 March 2005, http://sports-law.blogspot.com/2005/03/title-ix-step-towards-less-regulation.html.
“A little Title IX history,” by Ted, Women’s Hoops, 24 March 2005, http://womenshoops.blogspot.com/2005/03/little-title-ix-history-three-part.html.
This is why I love the blogosphere. You may remember in my first Title IX post, I focused on the email surveys. In particular, the implication was that because email surveys have a very low response rate, it effectively ends Title IX. (Another criticism was that colleges should develop equal interests in sports, not merely reflect existing interest).
Well, both WH and SLB pick up another tangent: that the most important change may be a shifting burden of proof
My tentative sense right now is that the biggest change has nothing to do with the surveys. Rather, the big change is that while the old policy essentially put the burden of showing compliance on schools, the new policy puts the burden of showing noncompliance on women. Further, it erects a high standard for showing noncompliance.
Now, one criticism that has been raised and seems more cogent is the question of the burden of proof. Under prong 3, the burden of proof has always been on the school to show “full” and “effective” accommodation. The online survey seems to be the red herring of the new policy interpretation. The real change is the shifting burden of proof. Under the new prong 3, a school using the model survey will be presumed to be in compliance with Title IX. The burden will then shift, to the federal government or to the students, to show by a preponderance of the evidence that a school is not in compliance.
The presumption of compliance can only be overcome if OCR finds direct and very persuasive evidence of unmet interest sufficient to sustain a varsity team, such as the recent elimination of a viable team for the underrepresented sex or a recent, broad-based petition from an existing club team for elevation to varsity status.
Reasonable minds can differ about the merits of this shifting of burden of proof. The administration seems to be saying that Title IX does not need to be as stringent as in the past, due to the incredible popularity of women’s sports that is not likely to wain. Females make up nearly 60 percent of college students — they will migrate to the schools that provide equal opportunities for women. On the other hand, women’s rights groups will argue that progress has been made but equality has not been achieved. Weakening Title IX could reverse the progress that has already been made.