Title IX rules just got a little simpler for some college athletics departments, thanks to a policy clarification issued this month by the U.S. Department of Education. Whether the rules mean that colleges will not have to add more women’s teams is being hotly debated.
Women’s advocates are furious about the new document, a clarification of regulations issued under Title IX of the Education Amendments of 1972, the law banning sex discrimination at institutions receiving federal funds. It places the burden of proof on students and government investigators, rather than on a college, to show that women’s athletics interests and abilities are not being accommodated. And it says that all colleges have to do to determine demand is to send out a survey by e-mail.
But the department insisted that the clarification was in line with previous statements of policy, and a Clinton-era department official agreed.
In athletics, colleges comply with Title IX by 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 opportunities to play sports.
Under that test, colleges may choose any one of these criteria to meet:
- Having the proportion of athletes who are women the same as the proportion of students who are women.
- Having a history and continuing practice of expanding programs for women.
- Being able to demonstrate 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.
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, 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 department said it would assess the interests of not only enrolled students but also of high-school students in the college’s recruiting region, members of amateur-athletics associations, and community sports leagues.
Shifting the Burden
The new clarification flipped that measure around. An institution will be found in compliance, it said, unless a women’s sport existed “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 demand for sports is to send a periodic survey to all its students, or at least to all female undergraduates. The department is offering a model survey on its Web site.
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 written statement last week. “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.”
Weakening Title IX
Neena K. Chaudhry, senior counsel for the law center, noted that the department had considered major revisions in Title IX proposed by the 2003 Secretary’s Commission on Opportunity in Athletics. “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.”
Susan M. Aspey, a spokeswoman for the department, said the clarification wasn’t a big enough 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 center’s statement.
Institutions also 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.
Arthur L. Coleman, who served as deputy assistant secretary for civil rights in the department under President Clinton and helped write the 1996 clarification, agreed with Ms. Aspey’s assessment.
“Broadly speaking, this tracks precisely with what OCR put out in 96 in terms of its clarification,” said Mr. Coleman, now a lawyer with the Washington office of Holland & Knight. “The material shift here is less one about substantive legal standards than issues of evidence, and how OCR will address issues in the middle of an investigation.”
While the new policy explicitly shifts the burden of proving discrimination to the civil-rights office or people who complain about it, said Mr. Coleman, that was always the way investigations worked. The new policy streamlines the process for assessing and proving compliance with the law, he said.
The policy points out that even if a survey does not find sufficient interest and ability in a sport to justify adding a team, “direct and persuasive interest” shown in other ways -- such as having a high-quality club team or intramural program in a sport -- could force a college to add a team.
Mr. Coleman also pointed out that the clarification says colleges ought to survey not just women, but also men. If a college could show that a demand existed for a men’s sport, and it could prove that women’s interests were being fully and effectively accommodated, then it would be free to add the men’s sport.
Many colleges have cut back on men’s sports to comply with the first part of the three-part test, and advocates of those sports said the policy clarification could stem the bleeding.
“This is a positive step forward,” said Eric Pearson, executive director of the College Sports Council, a public-interest group that has sued for changes in the law. “It fills in some gaps in the third test. It was a little mushy before, but this gives more concrete example for universities to follow.”
The new policy is on the Education Department’s Web site (http://www.ed.gov/about/offices/list/ocr/docs/title9guidanceadditional.html).
http://chronicle.com Section: Athletics Volume 51, Issue 30, Page A47