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The Title IX Solution

Tony Dziepak
December 2002

In March of 1995, I have written my article, "Title IX vs. OCR," which laid out the fundamental flaws in the Department of Education, Office for Civil Rights' (OCR) interpretation of Title IX and misuse of statistics. Since then, I have received many comments on all sides and have refined my view on the problem and the solution. At this point, I feel the most constructive thing to do is to showcase the basic problem and solution as simply and as concisely as possible.

The OCR's three-prong test to determine gender equity is well constructed law and should remain in place. However, the one major problem that has led to all of the difficulties is in the way underrepresentation is defined.

Gender and minority underrepresentation, (or underutilization, as it is called in most civil rights law), must be measured using the relevant applicant pool. The relevant applicant pool in NCAA athletics is the NCAA initial-eligibility clearinghouse applicant pool, not the student body. This is because the potential student athletes (PSAs) are recruited from the initial-eligibility applicant pool, not the student body.

Using the student body to determine gender underrepresentation actually violates the affirmative action hiring policies at most Universities. For example, if the engineering department wants to hire a new civil engineering professor, the relevant applicant pool would be the recent civil engineering PhDs, which may only be 5% women. The school cannot try to hire 55% or 60% women to match the student body.

Even though PSAs become full-time students upon matriculation (after the recruiting proccess), this does not make the student body the applicant pool for that school's athletic department. The intersect between the student body and the student-athlete applicant pool at a particular university is very small (see fig).

The actual applicant pool for most Division I sports are the PSAs, which are mostly graduating high school seniors, with some junior college or other college transfers, and a few walk-ons from the student body. There is the myth held by people outside of athletics that the students go to college, and then decide to try out for varsity sports teams. As a rule, the athletic participation decision is made prior to enrollment.

High school is another story. In general, middle school/junior high school recruiting into high school does not occur, so high school students do, in fact, come out for teams after they enroll. So in high school, you have to look at what proportion of boys vs. girls come out for try-outs to determine the applicant pool.

The solution is simple. You must allow schools to use the relevant applicant pool to determine gender underrepresentation. In NCAA athletics, this is the initial-eligibility clearinghouse. Then enforcement of all three prongs of the OCR's test will become equitable, as well as consistent with other affirmative action law. I think that we can live with a proportionality test so long as the relevant applicant pool is used. When properly applied, it will allow schools to follow the original intent of Title IX--to make men and women's sports programs equally selective.

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