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Fleece doesn’t see the notion of cheerleaders as varsity athletes as such a stretch. “People are going to follow suit,” she said. “This will happen just because it makes sense.” y TITLE IX—THE GOOD NEWS, THE BAD NEWS California Women’s Law Center Title IX of the Education Amendments of 1972 is a federal law prohibiting gender discrimination in any school receiving federal funds.1 Although the law prohibits sex discrimination of any kind, it is best known for its role in promoting athletic opportunities for women. While female athletic programs have made great strides since 1972, there is still much to be done to level the playing fields. Here is the latest news on Title IX: The Good News In March 2005, the Supreme Court of the United States decided a landmark case involving Title IX, Jackson v. Birmingham Board of Education .2 Roderick Jackson, head coach of the girls’ basketball team at Ensley High School in Birmingham, Alabama, knew that it was unfair that the girls’ basketball team had to practice in an old, unheated gymnasium , travel to games by carpool, and give up revenue from ticket sales while the boys’ team practiced in a new, regulation sized gym, rode to games in school buses, and kept their ticket proceeds.3 Jackson noti- fied school administrators that this discrimination against girls violated Title IX.4 Instead of responding to his concerns, the school board punished him by giving him negative work evaluations and eventually dismissing him from his position as head coach.5 Jackson sued the Birmingham school board, alleging that the board had retaliated against him because he had complained about sex discrimination in the high school’s athletic program, and that such retaliation violated Title IX. The Supreme Court agreed. Law and Equity 353 From the Web site of The California Women’s Law Center, www.cslc.org, 2005. 354 WOMEN AND SPORTS IN THE UNITED STATES • The court held that retaliation against a person for complaining about sex discrimination was a form of intentional discrimination encompassed by Title IX’s private right of action.6 • The court interpreted Title IX broadly, to protect not only those who are personally the victims of gender bias (in this case, the girls’ basketball team), but also those who seek to vindicate the rights of girls. Without this protection, Title IX would be meaningless because schools could retaliate against adults who stand up for minors’ rights. The Bad News Although the Jackson case is a victory for Title IX, the Bush Administration has stealthily attempted to undermine more than thirty years of progress. In 2003, the Department of Education promised to “respect and enforce the long-standing policies mandating equal opportunity in athletics”7 and not to make any changes to Title IX without opportunity for public comment.8 However, in March 2005 the Department of Education issued a new “policy clarification” on its website, without any notice or public input. Previous Title IX policies established a three-part test for schools to prove they provided equal opportunities to play sports.9 The new policy substantially modifies the third prong of the test, making it easier for schools to continue to offer fewer athletic opportunities for female athletes. Specifically, the “clarification” allows schools to determine female students’ athletic interests and abilities solely from the results of an email survey. • Under the new policy, schools may show they are in “compliance” with the law based solely on the results of an email survey sent to female students.10 Previously, surveys were only one of the many factors in a school’s determination of unmet athletic interest or ability; other factors included requests to add new teams, existence of club or intramural teams on campus, and looking to feeder schools or community athletic programs to determine what sports were being played in the area. Now, the government says a survey alone is enough. • A non-response may be counted as lack of interest. Under the new policy , non-responses to the survey may be counted as lack of interest or ability to play sports. This method is flawed because the non-response rate is extremely high for email surveys; students may delete the survey, not realize its significance, or be too busy to respond. • The survey depends on girls’ self-assessment of ability. The survey requires girls to determine whether they have the ability to compete on a varsity team. Because many girls may...

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