New Federal Policy Eases Rules for Colleges to Prove Compliance with Title IX in Sports
By Welch Suggs, Chronicle of Higher Education, March 22, 2005

Colleges will have an easier time proving that they are meeting women's interests in intercollegiate athletics under a policy clarification issued last week by the U.S. Department of Education. The clarification appears to fly in the face of one of the most influential court rulings in the long battle over women's opportunities to play sports in college.

A "Dear Colleague" letter published on the department's Web site offers a clarification of the most controversial section of regulations issued under Title IX of the Education Amendments of 1972, the law that bans sex discrimination at institutions receiving federal funds. While previous clarifications have tried to explain Title IX policy, this one substantially redraws it.

The new policy puts the burden of proof on students and government investigators to show that a college is not doing enough to accommodate women's athletic interests and abilities. And it says that all universities have to do to determine demand for a women's sport is to send out a survey by e-mail.

In athletics, colleges must ensure that they do not discriminate against men or women in offering scholarships, program benefits like locker rooms and coaching, and opportunities to participate. Since 1979, the department has used a three-part test to determine whether women have enough chances to play.
Under that test, colleges may choose any one of these criteria to show compliance with the law:
• Having the same proportion of women playing sports as are enrolled as undergraduates.
• Having a history and continuing practice of expanding programs for women.
• Demonstrating that the women's sports program fully and effectively accommodates the interests of female students and potential students.

The third part of the test is in some ways the toughest to meet. In a 1993 decision in a case involving Brown University, a three-judge panel of the U.S. Court of Appeals for the First Circuit ruled that complying with the third option did not mean accommodating women's interests and ability to the same degree as men's. Rather, the court said, it meant completely accommodating them.

"If there is sufficient interest and ability among members of the statistically underrepresented gender, not slaked by existing programs, an institution necessarily fails this part of the test," wrote Judge Bruce M. Selya in the court's opinion, which Brown unsuccessfully appealed to the U.S. Supreme Court (The Chronicle, May 2, 1997).

A 1996 policy clarification by the Education Department underscored the appeals court's ruling, noting that if a college had women who were interested in a particular sport, were talented enough to sustain a team in that sport, and had a reasonable expectation of competition, a college had to start a team if it wanted to comply with the third part of the test (The Chronicle, January 26, 1996). The department said it would assess interests not only of enrolled students, but also of high-school students in the college's recruiting region, members of amateur athletic associations, and community sports leagues.

Last week's clarification flipped that compliance measure around. An institution will be found in compliance, it said, unless a women's sport exists "for which all three of the following conditions are met: (1) unmet interest sufficient to sustain a varsity team in the sport(s); (2) sufficient ability to sustain an intercollegiate team in the sport(s); and (3) reasonable expectation of intercollegiate competition for a team in the sport(s) within the school's normal competitive region."

"In this analysis, the burden of proof is on [the department's Office for Civil Rights] or on students to show by a preponderance of the evidence that the institution is not in compliance with part three," according to the clarification.

Further, all a college has to do to judge the demand is post an online survey, for which the department offers a model on its Web site, that "institutions can rely on as an acceptable method to measure students' interests in participating in sports."

The National Women's Law Center strongly criticized the clarification, saying that it was a substantial rollback of the department's policy.

"The survey is inherently flawed because it presumes a survey alone can accurately measure student interests," the law center said in a news release on Monday. "The guidance does not require schools to look at other factors they once had to consider, such as coaches' and administrators' opinions or women's participation in sports in surrounding high schools or recreational leagues."

Neena Chaudhry, senior counsel for the law center, noted that the department had considered major revisions in Title IX proposed by the Secretary's Commission on Opportunity in Athletics in 2003 (The Chronicle, March 7, 2003). "We certainly see it as a further attempt to weaken Title IX," she said. "There were attempts to do that via the commission, and the administration pulled back because of the public outcry."

This time, she said, the administration operated "under the radar." The 1996 clarification had been circulated in draft form to 4,500 interested parties, Ms. Chaudhry said, while the latest policy "was certainly not circulated to anyone."

Susan Aspey, a department spokeswoman, said the clarification wasn't enough of a change from previous regulations to warrant sending it out for comment.

"One would be hard-pressed to explain how providing additional information to help schools to provide equal opportunity for all is, to use their word, underhanded," she said, referring to the law center's release.

Institutions can still use either of the other parts of the test, she said, but the department had no plans to issue further clarifications on those.

Background articles from The Chronicle which can be accessed through http://chronicle.com :
• Cheers and Condemnation Greet Report on Gender Equity (3/7/2003)
• U.S. Commission on Title IX Calls for Protecting Men's Teams (2/28/2003)
• Can a Commission Change Title IX? (7/12/2002)
• Supreme Court Denies Brown's Appeal on Gender Equity in Sports (5/2/1997)
• Brown U. Appeals Ruling on Women's Sports to Supreme Court (2/28/1997)
• Education Dept. Further Clarifies Policy on Title IX (1/26/1996)
• Few Are Pleased With New Title IX Clarification (11/3/1995)
• Brown Loses Bias Case (4/7/1995)