Revisiting Title IX Policy

It’s been more than two years since the Department of Education's Office for Civil Rights released a letter clarifying that one way in which colleges can show they are in compliance with Title IX is by using a survey meant to gauge female students' interest in athletics.

Controversial from the time of its release, the department's directive has been both praised as much-needed guidance and blasted as a loophole that allows colleges to avoid giving more opportunities to female athletes. The ensuing debate has covered just about every angle of Title IX, the federal law that bars gender discrimination by institutions that receive federal funds.

And it's clear that the department's 2005 "model survey" is still a major point of contention. A day before the U.S. Commission on Civil Rights takes up Title IX and how the information obtained through the survey can be useful, critics of the policy guidelines held a conference call to argue once again that the department is chipping away at the integrity of the 1972 legislation.

First, a brief review. In 1979, the Education Department issued an interpretation of Title IX saying that colleges could show compliance with the law's requirements related to athletic participation by meeting any one of three tests:

• Having the percentage of male and female athletes substantially proportionate to the percentage of male and female students enrolled at the college.
• Having a history and continuing practice of expanding participation opportunities for the underrepresented sex (nearly always women).
• “Fully and effectively” accommodating the interests and abilities of the underrepresented sex.

With female undergraduates outnumbering men at many colleges and with football teams requiring large numbers of male players, satisfying the first test has become increasingly difficult for institutions unless they add women's teams or cut men's squads (usually in Olympic or so-called nonrevenue sports like wrestling, gymnastics, etc.). Many colleges remain wary of the second test because it is vague and open to interpretation by the courts and by the Education Department's Office for Civil Rights, which is charged with enforcing Title IX.

That leaves the third test. The OCR has long said that if a college can show that it is accommodating the "interests and abilities" of current and potential female athletes -- commonly referred to as "prong three" of the participation requirement -- it can comply with the law without having a ratio of female to male athletes similar to that of its student body. Prior to the department's directive, colleges generally thought of this test as being hard to prove.

Included in the department's 2005 letter was a model survey that showed how institutions could demonstrate compliance with the third test. Critics have repeatedly pointed to what they consider a major flaw of the survey -- that non-responses count as an answer of "no interest."

Gerald A. Reynolds, chairman of the Commission on Civil Rights, said in a phone interview Thursday that the model survey has served an important purpose.

"Colleges had been asking the department for assistance in measuring interest and ability for years," Reynolds said. "The department finally got around to responding to the complaint. We use surveys to measure interest every day, so the real question is how it is working. The burden is on individuals to make the argument that it is inappropriate."

During Thursday's briefing, organized by members of the National Coalition for Women and Girls in Education, plenty of people were ready to make that claim. Myles Brand, president of the NCAA, which soon after the 2005 clarification advised its members not to solely rely on the survey, said it is skewed. If a female recruit wants to play a sport that isn't offered at a given institution, she probably won't attend that college. To then go back and ask students who are enrolled at the institution if there is any interest creates a faulty sample, Brand said.

Added Nancy Hogshead-Makar, a professor at Florida Coastal School of Law and a former Olympic swimmer: "Measuring inherent interest would freeze the level of competition into place."

No college has reported using the survey to measure student interest, which Brand said he hoped was a sign that institutions have taken the NCAA's advice to heart, and Jessica Gavora, a vice president with the College Sports Council, said is a combination of the association's advocacy and the threat of lawsuits.

So, if there's no evidence that the survey changed the Title IX landscape, why the concern over today's meeting of the federal panel, which has no legal authority?

"Our fear is that the intention is to create a public record to be used by the Department of Education to say that there is support by the commission for the 2005 clarification," said Donna A. Lopiano, chief executive of the Women's Sports Foundation. "It's a weakening of the spirit of the law. When athletics directors can say, 'Let me wait and see, maybe I'll get some relief,' that's the situation that has the potential to stop progress in its tracks."

Lopiano and others continue to argue that the three-part test is lawful and does not need any clarification. (Supporters of the 2005 guidelines argue that the department didn't change its policy). Women's sports supporters site research showing that women continue to be underrepresented in college athletics, and that lax Title IX enforcement by federal officials has led to stunted progress for female players.

Lopiano said the coalition is strongly urging the department and institutions to abide by a 1996 clarification that says surveys should not be used as the sole method of determining prong three compliance -- similar to the message sent by the NCAA.

Gavora of the College Sports Council criticized Brand for participating in the briefing, saying that the NCAA should represent all athletes, including males, many of whom she said suffer because of how Title IX is enforced.

While Gavora said there is some merit to Brand's complaints about what the survey is measuring, she said it is but one tool out of many available to measure women's interests and men's -- something, Gavora adds, that is often left out of the conversation.

"For so long there have been these subjective measures that schools are supposed to rely on, and now there's some clarity," she said. "I expect all the same arguments to be leveled [during today's hearing] -- that it's not responsible to measure interest but that it's fine to create interest. That's one premise, but it's not what the law says or what it was intended to do."