In April, the Obama administration gave itself a victory lap, thinking it had just scored the winning goal by rolling back a 2005 Bush administration Title IX policy clarification. In his announcement, Vice President Biden called the rollback a “no brainer” — that is to say, it required little thought. And indeed, the Obama administration has put very little thought into how the policy change would affect male and female athletes. It will once again put the emphasis for Title IX compliance on the proportionality prong of the policy’s three-part test. Technically, there are supposed to be three ways for a school to comply with Title IX. However, since the Cohen v. Brown ruling in 1995, the courts and federal bureaucrats have made clear to schools that when it comes to the threat of Title IX litigation, only the proportionality test will give them a safe harbor.
