Last fall we blogged about the large number simultaneous complaints filed with the Department of Education's Office for Rights about Title IX violations in Oregon, Washington, and Idaho high schools. In those cases, anonymous complainants used public data from the OCR's 2006 Civil Rights Data Collection to identify hundreds of high schools in these states in which girls had disproportionately low number of athletic opportunities and no evidence of continuous effort to increase those opportunities. OCR's regional enforcement office, likely overwhelmed with the high volume of complaints, dismissed them for insufficient allegation that the school districts were also in violation of prong three of the three-part test for determining whether athletic opportunities are equitably distributed based on sex. Prong one requires proportionality, prong two requires continuous program expansion for the underrepresented sex, and prong three requires no unmet interest among the underrepresented sex. Schools only need to comply with one of the prongs.
Gone unnoticed in the press is a similar mass complaint alleging Title IX violations in 900 California high schools, using similar basis for allegations as the Washington, Oregon, and Idaho complaints. 900! That's 85% of California's public high schools at which girls have disproportionately low numbers of athletic opportunities. While this is not dispositive of the question of compliance, it is certainly likely that if girls have low numbers of athletic opportunities relative to boys, which haven't been increasing on a regular basis, there is likely unmet interest among the underrepresented sex.
Like the mass-complaints filed about California's neighboring Northwest states, the complaint about the California 900 was also rejected by OCR, which has required the complainant to make a specific allegation of unmet interest before proceeding with an investigation. Specifically, OCR suggested that the complainant include allegations that girls have requested additional teams that have been denied, or that there is widespread participation in a particular sport in private clubs or other non-scholastic contexts. OCR rejected the argument that it is the school district's burden to prove Title IX compliance, not the complainant's burden to prove that it does not.
As I suggested in the context of the Idaho complaints, this outcome may be unique to the context of the mass-complaint, designed to preserve agency resources, which surely do not allow for the agency to effectively investigate 900 high schools simultaneously, and not an effort to change the rules of the game for typical, single-district complaints. I take to heart the fact that OCR's letter to the complainant rejecting the 900 complaints included the boilerplate language, "This letter is not a formal statement of OCR policy and should not be relied upon, cited, or construed as such."
Even still, I disagree with the way OCR is handling the allegations in the mass complaints. By rejecting them out of hand, OCR is missing a valuable opportunity to send a message to school districts that compliance with prong three is an active, not passive obligation. A school district with disproportionate opportunities should not get to sit back and relax, assuming that if girls are not rallying in the street for equal opportunities, that all is well. They should be regularly assessing the level of student interest, and responding accordingly. If they are conducting regular assessment, it should not be a burden for those districts to submit on request evidence that their athletic offerings for girls, lopsided though they may be, satisfy the interests and abilities of the underrepresented sex, such as through survey evidence or community-wide participation reports. That said, here is what I would do if I were the head of OCR enforcement in California's region. I would send identical letters to all 900 high schools to the effect of, "Hey,we've gotten a Title IX complaint alleging that your school doesn't comply with all three prongs. Please submit whatever evidence compels your conclusion that you comply with prong three (or even prong two), so that we can dismiss the complaint against you. If you don't have that information, please sign this voluntary resolution agreement detailing how you will assess student interest and respond with additional opportunities if the assessment shows unmet interest. If you don't submit either, OCR will open the complaint for investigation."