U.S. Department of Education Title IX Athletics Clarification
 
March 23, 2005
 

Overview

On March 17, 2005, pursuant to Title IX of the Education Amendments of 1972 (Title IX), the U.S. Department of Education Office for Civil Rights (OCR) issued an “Additional Clarification on Intercollegiate Athletics Policy: Three-Part Test – Part Three” (the Clarification). That guidance was accompanied by a 121-page “User’s Guide to Developing Student Interest Surveys Under Title IX,” which includes a Model Survey for assessing student interest in athletics participation. The Clarification does not purport to alter federal legal standards or policy. It is described as “technical assistance” to “further help institutions appreciate the flexibility of the [three-part] test.” Its focus is on the recommended (but not required) use of a Model Survey, which can establish a presumption of compliance with one segment of Title IX requirements (if certain conditions are satisfied).

Background

Title IX prohibits discrimination on the basis of sex by any educational institution – public or private – that is a recipient of federal funds. With respect to athletics issues, in particular, federal rules provide that if an institution sponsors an athletic program, it must provide equal athletic opportunities to members of both sexes. The U.S. Department of Education’s Office for Civil Rights, charged with the enforcement of Title IX, issued policy guidance in 1979 that examines three areas of compliance: athletic financial aid; the quality and kind of benefits offered to athletes (e.g., coaching, equipment, etc.); and the number and quality of participation opportunities.

Compliance with respect to the third of these areas can be achieved in one of three ways:

1. By demonstrating that intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments; or

2. Where members of one sex have been underrepresented among intercollegiate athletes, by demonstrating a history and continuing practice of program expansion which is demonstrably responsive to the developing interests and abilities of the members of that sex; or

3. Where members of one sex are underrepresented among intercollegiate athletes, by demonstrating that the interests and abilities of the members of that sex have been fully and effectively accommodated by the present program.¹

The Clarification affirms long-established OCR policy, including that no part of the three-part test is favored over any other; the elimination of teams as a method of achieving compliance is “disfavored;”² and when determining the interests and abilities of students, colleges and universities “may continue to use a variety of straightforward and inexpensive techniques” consistent with legal standards.³

The Clarification’s focus is almost exclusively on the third part of the Three-Part Test: whether (and how) colleges and universities demonstrate that the interests and abilities of the underrepresented sex in intercollegiate athletics have been fully and effectively accommodated by the institution’s program. This standard implicates an examination of three issues: student interests, student abilities and expectations of competition.

The Clarification: Key Points

1. Evaluating Student Interest

• Model Survey

The Clarification principally addresses issues of evidence related to OCR investigations, providing that institutions may rely on a Web-based model survey instrument (the Model Survey) as “an acceptable method to measure students’ interests in participating in sports.” If properly administered, and in cases where survey results reflect an insufficient interest to support a varsity team, colleges and universities will be “presumed” by OCR to be in compliance with part three – a presumption that can only be overcome by “direct and very persuasive” evidence of unmet interest to sustain a varsity team. Notably, part three compliance does not require “use of the Model Survey or any other survey.” (Also, the Model Survey can be used to assess student interests in connection with part two of the Three-Part Test.)

• Model Survey Administration

Criteria that must be satisfied in order to merit the presumption of compliance described above include:

- periodic administration, “to permit schools to identify developing interests”

- a census survey, to all full-time undergraduates or to all full-time undergraduates of the underrepresented sex⁴

- administration in a way “designed to generate [a] high response rate,” with students having “an easy opportunity” to respond

- inclusion of the full list of sports recommended in the Model Survey, which includes all varsity sports and emerging sports recognized by the three national intercollegiate athletic associations to which most schools belong

• Other Surveys

Census surveys that do not use the Model Survey also will be presumed to accurately measure student interest under part three “if OCR finds that the census is of equivalent reliability” and administered as described above. (Factors to be evaluated by OCR when making this determination include: survey contents; target population; response rate; and survey frequency.) Otherwise, OCR will look to a “broader range of factors” explained in previous OCR guidance to determine if schools have accurately measured student interest.

2. Evaluating Student Abilities

Assessing Ability

Athletic director and coach assessments of student abilities “will be presumed to be valid, provided the methods used to assess ability [are sufficient].” Multiple factors related to this evaluation may be considered by OCR. When a Model Survey (or equivalent) is used, OCR will also presume that a student’s assessment of his/her “lack of ability to compete … is evidence of actual lack of ability.”

3. Evaluating Ability to Sustain a Team with Competition

Team Viability

An institution’s obligation to create a team for the underrepresented sex under part three of the Three-Part Test arises only where the number of “interested students with ability” is “sufficient to sustain an intercollegiate team” in a particular sport. In addition, OCR will examine “available competitive opportunities in the geographic area in which the institution’s athletes primarily compete” to determine if there is the requisite “reasonable expectation of intercollegiate competition for the team in the institution’s normal competitive region.”

Key Reference Documents

• “A Policy Interpretation: Title IX and Intercollegiate Athletics,” Federal Register,Vol. 44, No. 239 - Tuesday, Dec. 11, 1979.

http://www.ed.gov/about/offices/list/ocr/docs/t9interp.html

• “Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Test,” January 16,1996.

http://www.ed.gov/print/about/offices/list/ocr/docs/clarific.html

• “Open To All: Title IX At Thirty,” The Secretary of Education’s Commission on Opportunity in Athletics, U.S. Department of Education, February 28, 2003.

http://www.ed.gov/about/bdscomm/list/athletics/report.html

• “Further Clarification of Intercollegiate Athletics Policy Guidance Regarding Title IX Compliance,” U.S. Department of Education, July 11, 2003.

http://www.ed.gov/about/offices/list/ocr/title9guidanceFinal.html

• Alan F. Karr and Ashish P. Sanil, “Title IX Data Collection: Technical Manual for Developing the User’s Guide,” National Institute of Statistical Sciences, February 2005.

“User’s Guide to Student Interest Surveys Under Title IX,” National Center for Education Statistics, U.S. Department of Education, March 2005.

“Additional Clarification of Intercollegiate Athletics Policy: Three-Part Test ¯ Part Three,” U.S. Department of Education, March 17, 2005.

http://www.ed.gov/about/offices/list/ocr/docs/title9guidanceadditional.html

For more information, e-mail Art Coleman or Scott Palmer (co-leaders of Holland & Knight’s Education Policy Practice) at arthur.coleman@hklaw.com or scott.palmer@hklaw.com, respectively, or call toll free, 1-888-688-8500.

This Education Alert is a summary for general information and discussion only. It is not a complete analysis of the matters presented and may not be relied upon as legal advice which may often turn on specific facts. Readers should seek legal advice before acting with regard to the matters mentioned herein.

¹ Although each of these avenues is an independent way to achieve Title IX compliance, this set of standards has been, and continues to be, referred to as the “Three-Part Test.” For consistency purposes, this document will reference these three avenues of compliance, collectively, as the “Three-Part Test.”

² The Clarification fails to note that the elimination of teams is a step that can only help an institution achieve compliance with respect to part one of the Three-Part Test. Parts two and three relate exclusively to how (in differing ways) the interests of the underrepresented sex are being met. In the context of those standards, eliminating teams of the overrepresented sex would accomplish nothing with respect to Title IX compliance.

³ The Clarification affirms that OCR (or a complainant filing a Title IX grievance) bears the burden of proving “by a preponderance of the evidence” that an institution is not in compliance with part three of the Three-Part Test.

⁴ OCR states that the Model Survey “ideally will be administered to students of both sexes.” However, there is no legal requirement and the Clarification does not mandate that surveys be administered to students of both sexes. The legal requirement is that surveys, if used, gauge the interest and ability of the “underrepresented sex” on campus.