Conservative pundits have (so far) been slower to defend the administration's Title IX action than liberals have been to attack it. Over the weekend, however, the National Review's Kathryn Lopez had this piece published in a couple small papers.

Jonah Goldberg also mentioned the change in his recent Town Hall column.

Goldberg, normally a good and intellectually honest writer, played a little bit loose with the facts when he said that, under the old rules, "the only way a school could absolutely prove it was in compliance with 'Title IX' was to implement a rigid gender quota system for collegiate athletics, even if few women wanted to participate."

That's not true. Since 1979, the "three-prong test" has provided three different ways to comply; "strict proportionality," the first prong, is only one possible means of compliance.

Under the 1996 clarification, the first prong was the only prong described as a "safe harbor." That made some sense, since the first prong is a simple matter of numbers, while compliance by the other two prongs required a little more evidence, and a little more searching inquiry.

Title IX opponents have always seized on the "safe harbor" language to argue that "quotas" are the only way to comply. But in 1996, the OCR went out of its way to make clear that strict proportionality "only one of three alternative measures."

The OCR has repeatedly emphasized this point, as it did two years ago.

The transmittal letter accompanying the 1996 Clarification issued by the Department described only one of these three separate prongs - substantial proportionality - as a "safe harbor" for Title IX compliance. This led many schools to believe, erroneously, that they must take measures to ensure strict proportionality between the sexes. In fact, each of the three prongs of the test is an equally sufficient means of complying with Title IX, and no one prong is favored. The Department will continue to make clear, as it did in its 1996 Clarification, that “[i]nstitutions have flexibility in providing nondiscriminatory participation opportunities to their students, and OCR does not require quotas.”

And as pilight noted last week, 70% of schools already used the third "meeting interest" prong to achieve compliance.

The third prong may have been unnecessarily vague under Clinton's rules. Vagueness may have produced unnecessary litigation and unnecessarily high compliance costs. Clarification may have been a good idea.

But the third prong was at least clear enough that it was put to use by a majority of schools -- it was clear enough that most schools did not need to implement "strict proportionality" quotas. If schools could show that few women wanted to participate, by surveys or other measures, they could comply under the third prong. And 70% of schools did just that.

Claims like Goldberg's that a "rigid gender quota system" was the "only way to comply" under the old rules are uninformed or disingenuous.

UPDATE: Several people have written in to question my analysis. Goldberg, they say, is neither a good nor intellectually honest writer.