My third opinion on Title IX reform

Spoons, of thespoonsexperience, e-mailed us with a well-argued analysis of why, contrary to my first two opinions, the Bush’s adminstration’s Title IX reform “ensures” that most colleges will continue to cut sports programs for men. He writes:
“The problem is, of the three compliance tests available to colleges, only the ‘proportionality’ test is cheap and easy. The others either require colleges to spend lots of money doing periodic surveys, or else are so subjective that they offer no guarantee that a court or administrative agency will accept the college’s determinations.
Only the proportionality test offers a college [the opportunity] to be sure that it is in compliance with Title IX, and thus that it is not risking big damages and fines — not to mention horrible PR. By leaving the existing regulations in place, the administration ensures that the overwhelming majority of colleges will continue to use the proproationality test, and will boost women’s sports by cutting programs for men.”
Spoons may well be correct. I don’t know enough about the subject to say with a high degree of confidence that he isn’t. However, the following thoughts occur to me.
1. I’m not sure it’s that difficult or expensive to do an interest survey or to make a strong showing of past efforts to expand athletic opportunites for female students. I would think (but do not know) that much of the work can be done in-house or with a “cookie cutter” survey. On the other hand, eliminating men’s programs might result in litigation, which would probably require getting outside counsel. There can also be a PR downside to cutting traditional men’s programs.
2. The “prong” relating to past history is somewhat subjective. However, as I understand the Department’s current position, colleges are discouraged from eliminating men’s programs. This suggests that the government will not go straight from an adverse finding on the subjective prong to fines. It seems more likely that, in the event of an adverse finding on one prong, the college will have the opportunity to try another prong. If so, then colleges have some incentive not to start with the “nuclear” option of eliminating men’s programs.
3. Eliminating the proportionality test as a method of demonstrating compliance seems problematic. If a college proves that it is giving men and women the same amount of athletic opportunities, one can’t really expect the government to conclude that it is violating Title IX. It never seemed likely that the government would take away this “safe harbor.” The best hope was that it would (a) offer other safe harbors and (b) define proportionality more flexibly. As I understand it, the government did the former but not the latter. I see this as a compromise, not a cave-in. But time will tell whether the compromise is the functional equivalent of a cave-in.