The Department of Education's March 17 letter  announcing "additional clarification" of its policy for collegiate compliance with Title IX in athletic programs, issued without public input or comment, "clarifies" nothing and, instead, marks a dramatic and unprecedented reversal of the department's previous policy. It violates practically every legal principle upon which Title IX's 30-year jurisprudence is based and shifts the burden of compliance from schools to female athletes.
Specifically, the letter and accompanying "model survey" are contrary to established case law, contradict the department's prior pronouncements  and its Title IX Athletics Investigator's Manual, and ignore the reality that high schools and colleges create sports teams by predetermining sports offerings and encouraging (in the case of high schools) and recruiting prospective athletes (in the case of colleges) rather than requiring a demonstration of interest by existing students.
The gist of the letter is that schools in which females are underrepresented in athletics compared to their proportion in the general student body (Prong 1 of Title IX’s participation requirement) and that have not demonstrated a history and continuing practice of expanding opportunities for the underrepresented sex (Prong 2) would be deemed in compliance with the law under Prong 3 of the athletic participation provision if they simply e-mailed a "model survey" to current students to determine their interests and abilities and found interest by the underrepresented sex to be lacking.
This survey would create a presumption of compliance with Title IX, as long as the college or school did not recently drop a women's team or receive a recent request to elevate a women's club sport to varsity status. Once the survey is administered, the burden of demonstrating compliance with Prong 3 would shift from the college or school to the athlete. In essence, the institution would enjoy a presumption of compliance, a difficult hurdle for an athlete to surmount.
The "model survey" issued by the department fails to provide a valid measure of women's interest in sports and, instead, institutionalizes the very discrimination that is and has been the basis for women's lack of opportunity to participate in sports. The use of surveys rests on the stereotyped notion that women are inherently less interested in sports than men, which is contradicted by the country's experience of Title IX and fundamental principles of civil rights law.
Male athletes have never had to prove they were interested in sports to receive opportunities to play. Schools simply assumed male athletes were interested in sports, hired a coach who recruited athletes to play and offered varsity athletic experiences. Lo and behold, if you do the same for women, they too will play. We know of no instance in which a high school or college started a varsity women's team, hired a coach and then had the coach return his or her paycheck because they could not find enough women to play.
At the college level, athletes are only rarely recruited from the existing student body, but from the region or country at large. At the high school level, the coach finds students with and without experience or skill who are big enough or fast enough and urges them to come out for the team. Now, a college that goes out and recruits male athletes from all over the country and not from its existing student body, is not required to do the same for female athletes and can eliminate this obligation by administering an e-mail survey. Now, a high school is not obligated to encourage female athletes to come out for teams in the same way they encourage male athletes to come out for teams, so long as they administer an e-mail survey.
What an absence of common sense and abuse of power! A huge Title IX compliance loophole has been created despite a clear analysis by the courts on why surveys of the interest of the existing student body or even a pool of applicants to the university are patently wrong. In the most comprehensive and accepted case on the topic, Cohen v. Brown University,  a federal appeals court stated that the type of survey the department has proposed to gauge compliance under the third prong was "illogical" and "circular" in its reasoning.
The court expressly rejected the practice of surveying current students, noting that Brown actively recruits most students who end up playing on its varsity teams. The court stated: "What students are present on campus to participate in a survey of interests has already been predetermined through the recruiting practices of the coaches. What teams are established and can recruit or qualify for admissions preferences has already been predetermined by Brown. Thus, the interest present on campus is controlled by Brown; to then suggest that Brown must only satisfy the relative interests of students present on campus is circular."
Further, the court rejected surveying the pool of applicants to Brown. The court stated: "Using the pool of actual Brown applicants fails to consider the fact that college applicants interested in a sport not offered as a varsity sport at Brown may not even apply to Brown. A survey of actual Brown applicants would thus fail to capture the interest of those student-athletes who choose not to apply due to the limits of Brown's program offerings. To suggest that Brown need only satisfy the interests of actual applicants where Brown's selection of program offerings affects who applies to the school in the first place is illogical."
The letter also creates a disincentive for schools to develop their women’s sports club programs -- exactly the opposite of the intent of the law. The letter explains that the presumption of compliance can be overcome only if the Office for Civil Rights finds direct and very persuasive evidence of unmet interest, such as if a college either discontinues a viable existing team or fails to upgrade a club team to varsity status when there is a recent, "broad-based petition from an existing club team." It does not explain how a student could overcome the presumption in an effort to start a new sport, such as crew, thereby freezing current inequities into place. If the club team doesn’t exist, there cannot be a "broad-based petition from an existing club team," a new standard established by the letter.
And what if the students do not respond to the e-mailed "model survey"? The letter says, "Although rates of nonresponse may be high with the e-mail procedure, under these conditions, OCR will interpret such nonresponse as a lack of interest." To get a chance to play, females have to respond to their emails, a requirement that male athletes never have to meet.
Experts in the use of survey instruments have condemned the use of surveys of interest -- which measure attitude -- as a way to predict behavior. Culturally, men are simply more likely than women to profess an interest in sport. They are chastised if they fail to exhibit interest. It’s just the opposite for women, who are more likely to be criticized for their interest. Given their historic and current exclusion from a fair share of participation opportunities and this cultural bias, women are less likely to profess an interest in sports, even if they are interested! However, professing interest does not predict behavior and cannot be used to predict actual levels of participation when nondiscriminatory opportunities are made available. To use the results of interest surveys as a justification for withholding participation opportunities is an improper use of attitude survey methodology that the courts and policy-makers have repeatedly rejected due to irrelevance and bias.
While every legal authority has held that this survey practice cannot be made the sole litmus test for compliance under Prong 3 of Title IX, the letter sets up just a situation, totally reversing the current standard. The letter states that only if the “model survey” is not administered will it look at the following other factors which the courts have maintained must all be examined:
- Requests for the addition of a varsity team (even if no club team currently exists) or elevation of an existing club sport to varsity status
- Participation in club or intramural sports
- Participation in high school sports, amateur athletic associations and community sports leagues that operate in areas from which the institution draws its students
- Intercollegiate varsity participation rates, as identified by national and regional intercollegiate sports governing bodies, in the institution’s competitive region
Dependence on a single survey methodology also cancels the Department of Education’s own 1979 Policy Interpretation,  which states that schools are permitted to determine the athletic interests and abilities of students by nondiscriminatory methods of their choosing, provided that all of the following standards are met:
- The process take into account the nationally increasing levels of women’s interests and abilities;
- The methods of determining interest and ability do not disadvantage the members of an underrepresented sex;
- The methods of determining ability take into account team performance records; and
- The methods are responsive to the expressed interests of students capable of intercollegiate competition who are members of an underrepresented sex.
The letter and "model survey" also conflict with the department’s Title IX Athletics Investigator’s Manual, which instructs investigating officials to consider other factors reflecting interests and abilities, such as sports programs at "feeder" schools and community and regional sports programs. More importantly, the investigator’s manual states that a student survey may be a remedial tool to be used after a determination that an institution has failed the third prong; a survey is not utilized to determine compliance in the first instance, however. While a student survey may be part of a remedy to determine what sports to add when an institution’s current program fails Prong 3, it is not a proper test upon which to base compliance.
In summary, the letter and "model survey" contravene the basic principles of Title IX and its long-standing jurisprudence. Every legal authority -- including the department’s own prior policies and interpretations -- agree that surveys of existing students are an inaccurate, biased and invalid method of determining compliance under Title IX’s third prong. The letter confirms that the department has become the “fox guarding the henhouse” by thumbing its nose at the law and the female athletes it is charged with protecting.
The department, which has conducted no Title IX investigations since 2002, has now taken a startling step that protects the status quo in college sports.
Nancy Hogshead-Makar is an assistant professor of law at Florida Coastal School of Law and an Olympic gold-medal swimmer. Donna Lopiano is executive director of the Women's Sports Foundation.