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No Retreat on Title IX

March 20, 2006

Pressure from the U.S. Senate notwithstanding, the U.S. Education Department appears to be sticking by guidance it issued a year ago that gave colleges more latitude to use e-mail surveys of students to prove that they are not discriminating against female athletes.

On Friday, the department's Office for Civil Rights responded to a 2005 directive from the Senate Appropriations Committee to produce a report showing whether institutions that use surveys of student opinion to prove that they are complying with under Title IX of the Education Amendments of 1972 also "gather and consider other sources of information for assessing student interest." The request was included in a 2005 Senate spending bill that included language challenging the wisdom of the department's approach.

The report, which the department faxed to the committee at 8:30 p.m. Friday -- just barely meeting the March 17 deadline -- asserts that institutions that were allowed to use student surveys alone to show their compliance with Title IX were as likely to add teams as were colleges that used "additional factors" to show they were meeting the interests and abilities of their students.

"Decisions to add a new sports team differed little between surveys and assessments including the consideration of additional factors," the report says. "In addition, the decisions to add teams, whether the result of a survey alone or of an assessment including the consideration of additional factors, appear to be more frequently attributable to the survey component of the assessment."

The report, which was prepared by Stephanie Monroe, assistant secretary of education for civil rights,  concludes that the survey tool "has the potential to maximize the possibility of obtaining correct information and generating high response rates."

The department's report was immediately criticized as flawed by supporters of women's sports who have urged the Bush administration to abandon its year-old guidance on Title IX, which forbids sex discrimination at educational institutions that receive federal funds.

Donna A. Lopiano, chief executive officer of the Women's Sports Foundation, said Sunday that the OCR report does "nothing to modify or clarify" the 2005 guidance about the e-mail surveys, which Lopiano called a "legal and research instrument embarrassment." She added: "We should expect more from the United States Department of Education."

The department has taken its lumps since March 17, 2005, when, in a letter posted on its Web site, the Office for Civil Rights informed institutions, among other things, that they can gauge student interest in athletic participation using e-mail surveys, where non-responses count as an answer of “no interest.”

If an institution can demonstrate that it is accommodating the "interests and abilities" of students and potential students for women’s sports -- known as "prong three" of the three-part test for gauging compliance with Title IX's participation requirement -- it can comply with the law without having a ratio of male to female athletes similar to that of its student body, which is the more common way for colleges to demonstrate compliance.

Department officials and supporters of the guidance -- including advocates for men's teams who believe colleges have used Title IX to justify cutbacks in sports like wrestling and track -- asserted that the guidance did not make new policy, but rather clarified existing opportunities for colleges to use surveys of students to prove that they are meeting the needs of female students.

But critics, including the National Collegiate Athletic Association, complained that the guidance was inconsistent with longstanding federal law and regulations, by giving colleges a "model survey" they could use to make that case, and by allowing them to survey students via e-mail, which they view as unreliable.

A vocal minority of Congressional lawmakers has made that case, too. Senators have condemned the department with critical comments at hearings, for instance, and last summer, the Senate Appropriations Committee included language in a spending bill for education and health programs that expressed “concerned that confusion has been created” by the guidance. (The language had been softened from more-critical language that urged the department to withdraw the guidance.)

The committee believed, it said, that “survey results are not sufficient to demonstrate compliance if other evidence exists, such as requests for athletic teams, that contradicts the conclusions drawn from the survey.” It urged the department to make clear that colleges must make “good faith efforts to explore” such alternative evidence, and asked the department to prepare a report that examines whether institutions that seek to comply with Title IX by using such surveys also “gather and consider other sources of information for assessing student interest.”

In the report Friday, the Office for Civil Rights noted that it had been unable to honor the committee's request that it conduct random reviews of colleges that had used interest surveys to prove their compliance with Title IX, which it described as impractical "in the limited time available." Instead, the office said it had reviewed its files from October 1992 to January 2006 and identified 54 cases (excluding those that were still active) in which institutions had sought to comply with the third prong of Title IX's participation requirement by surveying their students.

Of the 63 "assessments" by the colleges in those cases that included a student survey, 34 considered other factors as well as the surveys, including such things as interviews with the colleges' current coaches or athletes, expressions of interest by club teams in upgrading to varsity status, and interviews with athletes or athletics officials in local high schools.

Twenty-eight of the 63 assessments resulted in the addition of new teams -- 42 teams in all. The department said its review had found that institutions that used other factors in addition to student surveys were "slightly more likely" to find sufficient student interest in adding teams than were those colleges that used surveys alone. But there was little difference between the two approaches in how often they resulted in the actual addition of teams, the department said.

The department's report also said that it had found "almost no actual conflicts" between the findings of the two approaches -- in other words, in most cases, the surveys and the other methods of gauging students' interest almost always reached the same conclusion about whether there was sufficient interest among students in adding teams.

While the department's report provides evidence about how surveys have been used in the past, and suggests that their use may not have diminished the likelihood of adding women's teams, it says nothing about one key objection raised by critics: that allowing such surveys to be delivered via e-mail will make them unreliable.

"The report did not change the 2005 clarification instructions that e-mail survey non-responses would be interpreted as lack of interest, a patently absurd contention that would be refuted by any researcher," said Lopiano. "A non-response is simply that, and no meaning can be conferred to anyone’s failure to respond to a survey."

 

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