Last week, Heritage published a blog post entitled “Obama Administration Broadens Gender Quotas in Higher Ed,” detailing the Administration’s expansion of Title IX enforcement to science, technology, engineering, and math (STEM) education.

The Department of Education (DOE) has taken exception to the post and sent the following via e-mail:

The Department of Education has not expanded the jurisdiction of Title IX, nor has the Department issued new Title IX regulations or guidance regarding the fields of science, technology, engineering, and math (STEM).

The Department is working with other agencies across the federal government to develop consistent and consolidated technical assistance for schools and institutions to ensure they understand their responsibilities under Title IX.

The goal of this coordinated multi-agency collaboration is to reduce the burden on schools and institutions, who may benefit from common guidance about their Title IX responsibilities and ways to improve access and outreach to women and girls in STEM fields. There is no truth to claims that the Department plans to impose STEM quotas or caps.

The DOE has created a new multi-agency initiative to “develop consistent and consolidated technical assistance” on Title IX in STEM. The heart of the matter remains the same: Title IX has a track record of measuring “opportunity” in athletics on the basis of whether participation is proportional to enrollment. This shifts the focus from equality of opportunity to equality of results, substituting policymakers’ desired outcomes for students’ own preferences. It should not be expanded to new fields.

On the White House blog, senior advisor to the President Valerie Jarrett writes about an event held in June by the White House Council on Women and Girls that included remarks by Education Secretary Arne Duncan on “expanding the reach of Title IX.” The post goes on to note that “the Administration announced a new set of policies to step up the enforcement of full gender equity under Title IX.”

What steps is the Administration taking?

  • The federal government will harness an interagency collaboration between the DOE and the Department of Justice to develop common guidance for colleges on Title IX compliance “to help institutions better understand their compliance obligations and ways to improve access and outreach to women and girls in STEM fields.”
  • The DOE will revise its technical assistance to explicitly address STEM education to include information for K-12 schools and universities about their requirements to “ensure equal access to educational programs and resources in STEM fields.”
  • The DOE “will broaden data collection to provide new gender-based academic analyses.”

Will this new collaboration result in quotas, substituting policymakers’ predetermined outcomes for the preferences of students, and diminished opportunities for men in STEM fields? If implementation of Title IX in the intercollegiate athletics context is a reliable indicator, there is strong evidence that it might.

While Title IX may not have originally been intended to establish quotas in athletics, a 1979 policy interpretation outlined three options or “prongs” for demonstrating compliance with the law, but one of them has come to dominate compliance:

Whether intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments.

The current Administration has rescinded a mechanism for making one of the alternatives more workable, and resource limitations make the other impractical. That has led most schools to resort to the use of de facto quotas that rely on strict parity. Regrettably, some courts appear to have sanctioned that approach.

In Cohen v. Brown, an appeals court ruled that Brown University had engaged in sex discrimination in violation of Title IX because its athletic program—which was designed to accommodate the interests and abilities of all athletes—did not produce “gender parity between its student body and its athletic lineup.” As one commentator observed, the case signaled “the transformation of Title IX from an equal opportunity and antidiscrimination law to a rigid and arbitrary quota system” in which proportionality came to be treated as the safest way for schools to demonstrate equity in sports opportunities for women.

According to a 2001 report from the Government Accountability Office that examined the impact of Title IX on college athletics:

The two factors cited most often as greatly influencing the decision to add or discontinue teams were the need to address student interest in particular sports and the need to meet gender equity goals and requirements.… [I]n schools with large intercollegiate sports programs, meeting gender equity goals and requirements was the factor most often cited as influencing decisions to discontinue men’s teams [emphasis added].

The Supreme Court declined to hear an appeal of Cohen v. Brown, and other lower courts have affirmed that reducing men’s sports participation is a permissible means of complying with Title IX. Universities subsequently took the concept of proportionality “to a ridiculous extreme.” As this comment in the New England Law Review notes:

It is clear that universities have attempted to comply with Title IX legislation; however, they have done so by eliminating men’s teams while creating, upgrading or reinstating women’s teams. Boston University recently dropped its football program due to Title IX pressures, San Francisco University cut football after 64 years, Colgate University no longer continues men’s baseball after 107 years, Cornell University’s men’s fencing team was discontinued after 98 years, Princeton University ended its wrestling program for fear of litigation due to an inability to satisfy “proportionality,” and UCLA dropped its swimming and diving team that had produced 16 Olympic Gold Medalists.

In what The New York Times called “one of the most high-profile examples,” James Madison University in Virginia decided to cut seven of its men’s sports teams in 2006 in order to comply with Title IX. The Times reports that students sued to reverse the decision but that the lawsuit was eventually dismissed. Last year, the University of Delaware demoted its men’s cross-country and track teams to achieve proportionality in an attempt to satisfy Title IX. Ball State, the University of California-Davis, and dozens more have faced similar dilemmas.

The Administration should avoid the development of any technical assistance or enforcement approaches that would, directly or indirectly, incentivize schools to adopt strict proportionality—and thus quotas—as the appropriate measure of compliance with Title IX in STEM programs.