Commission on Civil Rights to Investigate Federal Civil Rights Enforcement

The U.S. Commission on Civil Rights recently launched a "comprehensive two-year assessment of federal civil rights enforcement" that will examine "the degree to which current budgets and staffing levels allow civil rights offices to perform their statutory and regulatory functions, the management practices in place in the offices and whether these practices are sufficient to meet the volume of civil rights issues within the offices’ jurisdiction, and the efficacy of recent resolution efforts from the offices."

The Commission expressly identified specific concerns across seven different agencies as motivating factors for this investigation.  Among them was the Department of Education, which was called out because:

The proposed budget calls for reducing staffing by 7 percent (losing 46 full time equivalent positions) at the department’s Office for Civil Rights, which investigates sex, race, disability, and age based civil rights complaints.4 The proposed budget itself reflects that the cutbacks would result in an untenable caseload of 42 cases per staff member. These proposed cuts are particularly troubling in light of Education Secretary Betsy DeVos’ repeated refusal in Congressional testimony and other public statements to commit that the Department would enforce federal civil rights laws.

The Commission on Civil Rights is an independent agency, meaning that its eight Commissioners are appointed to serve six-year terms and (unlike the heads of agencies that report to cabinet members) cannot be fired by the president over political disagreements. It is also a bipartisan commission, set up to ensure that is not dominated by members of one political party and includes a mix of members appointed by both the President and congressional leadership. The Commission is currently chaired by Catherine Lhamon, who formerly served as the Assistant Secretary of Education for Civil Rights and was appointed by President Obama in the last month of his term. The Commission does not have enforcement authority, but rather, serves an advisory function by issuing reports about civil rights enforcement to the President and Congress. Therefore, its present investigation cannot directly change the civil rights practices in the Department of Education or other federal agencies. However, by exposing shortfalls in civil rights enforcement, the investigation could generate political pressure on the President and Congress to make changes, as well as provide information for voters to consider when the current President and members of Congress run for reelection.

Civil Rights Commission Endorses Model Survey

In a disappointing but not exactly surprising move, the U.S. Commission on Civil Rights has issued a report that endorsing the practice of colleges and universities to measure compliance with prong three by relying on the Model Survey method that the Department of Education created in 2005. Prong 3 measures whether schools fully and effectively accommodate the interests and abilities of the underrepresented sex; it is a less stringent standard than the alternative prongs of (1) statistical proportionality or (2) history and continuing practice of expanding opportunities for the underrepresented sex. The Model Survey allows schools to survey students of the underrepresented sex at a college or university to see whether there is unmet interest in athletic opportunities that students would have the skill and talent to undertake. Unless the survey shows unmet interest and ability in numbers sufficiently large to field a team, the existing athletic opportunities are deemed to comply with Title IX, even if women are severely underrepresented.

Critics--myself among them--argued that the Model Survey approach perpetuates existing disparities in athletic opportunities. For one thing, the Model Survey requires only women (or whichever is the underrepresented sex, but it's nearly always women) to prove their interest by enrolling first at a school that doesn't even offer the opportunity they are interested and able to undertake. Men do not have that burden, and are advantage by the likely reality that coaches and athletic administrators are actively recruiting interested and talented male athletes to the student body. Moreover interest and ability are constructed, in part, by the opportunities that are made available. When there are no opportunities, interest and ability remain stagnant. The Model Survey creates a vicious cycle, then, because the absence of interest and ability means the absence of opportunity.

It's not clear whether the U.S. Commission on Civil Rights endorsement of the Model Survey approach. The Commission is an unusual agency in that it does not have enforcement power, only the power to make recommendations and reports. For another, it is regarded as a body that is motivated by political considerations more so than independent, objective expertise. No surprisingly, the five commissioners (of 8) who endorsed the Model Survey recommendation (one of whom was technically an absention) were all appointed by President Bush. Another reason that the Commission's report is of questionable influence is that the Model Survey has a strong opponent in the NCAA, which has urged its member institutions not to rely on he Model Survey, for the reasons noted above. Like the Commission, the NCAA does not have enforcement authority with respect to Title IX. But it arguably has more name recognition and persuasive authority than this rather obscure commission.

U.S. Commission on Civil Rights to Look at Admissions, Athletics

InsideHigherEd.com reports today that the U.S. Commission on Civil Rights has commenced an "inquiry" into admissions standards that may be favoring male applicants who are increasingly underrepresented in the student bodies of many liberal arts colleges. The article suggests that the Commission (which does not have enforcement authority, only the power to make recommendations) may be using concern for female students as cover its real target, Title IX's application to men's sports. Colleges would not need to rely on discriminatory admissions standards if they could only attract more male applicants; they could do this by offering more athletic opportunities for them, but they are, sadly, hamstrung by Title IX.

This line of thinking is logically flawed, factually inaccurate, and steeped in stereotypes. First, no one is forcing colleges to lower their academic standards for male applicants. There is certainly no mandate that colleges admit men and women in equal numbers, just as there is no requirement that their student bodies are proportionate to the nation's racial demographics (imagine the uproar if that were so!) Colleges are afforded at least as much flexibility to consider sex in admissions as to consider race (the plus factor approach) and within constitutional limits, it is up to school how to incorporate academic standards and diversity into admissions decisions.

Second, Title IX is not the reason schools can't add men's sports -- the fact that men still have more athletic opportunities than women, both in absolute and relative terms, is the reason why schools can't add men's sports. Third, at least some colleges are adding men's sports -- we've blogged about it, see here, here, and here, e.g.! -- so even taking it out of the context of admissions, the suggestion that Title IX is preventing schools from expanding their men's athletic programs doesn't withstand scrutiny.

Fourth, the idea that colleges need to solve their admissions problem by adding sports for men operates from the annoyingly premise that it is more important to satisfy the athletic interests of men who are not, apparently, otherwise bound for college than it is to satisfy the women who are already there -- women are interested in sports too, and women have fewer athletic opportunities even though there are more of them in college!

Last, it sells men short; it suggests that they need to be tricked into applying to college by an admissions brochure with a lot of pictures of guys playing sports. To again use the race as an analogy, imagine the outrage if a government office expressed sympathy with colleges seeking to boost their racial diversity by adding athletic opportunities for minorities. Some would argue that such a plan exploits the minority student athletes and stigmatizes the minority student population in general by suggesting they otherwise would not be college bound. Some would argue that such a strategy provides clear evidence of the school's intent to promote athletics above academics. Others would argue that it's unfair to the white kids to limit their opportunities. All would be a little bit right.

It will be interesting to see what the Commission's inquiry reveals. Hopefully, it will steer clear of the misinformation and stereotypes discussed here.

UPDATE 11/3/09: More from today's Inside Higher Ed here; and Women's Sports Blog has a good take on it here.

Commissioners Skeptical of Women's Interest in Sport

The U.S. Commission of Civil Rights held hearings on the Title IX interest survey policy yesterday. According to this coverage in USA Today, the Commissioners expressed support of the interest survey policy (as predicted). This support came notwithstanding testimony of the NCAA's Judith Sweet and NWLC's Joceyln Samuels, among others, who argued that the results of an interest survey only reflect past and ongoing discrimination against women and girls in sport and will thus ensure that discrimination continues.

The USCCR is not a typical agency. It has no enforcement powers, only the power and responsibility to investigate and provide reports on discrimination and to make recommendations to Congress and the President. To ensure the commission's independence from either political branch or party, half of its 8 members are appointed by the President and half by Congress. The President has limited power to remove commissioners prior to the expiration of their 6 year term. No more than four members may be from one political party. (The present USCCR consists of 4 Republicans, 1 independent, 2 Democrats, and 1 vacancy.)

Because of the USCCR's atypical function, it is not altogether clear what effect yesterday's hearing will have, if any. Any recommendations it might make will be precatory in nature and not carry the force of law. So even if the Commission endorses the interest survey policy (which it seems poised to do), OCR, the agency that enforces Title IX, remains as free as it has always been to reconsider it at any time -- as does Congress. On the other hand, having a second government agency endorse the interest survey policy could give political cover to a school that wants to be the first to rely on the survey as their sole manner of compliance. But that seems unlikely to me. OCR, the agency that enforces Title IX has already endorsed the survey policy and schools haven't jumped on board. So what the USCCR seems unlikely to make a difference.

Additional links of interest:

• Inside Higher Ed has related coverage here.
• The National Coalition for Women and Girls in Education submitted this report in support of its position against the interest survey policy.