Title IX Returns to a Three-Part Test

In 1979, the federal government issued a policy statement intended to clarify how an educational institution could comply with Title IX in regard to athletics. Under the directive, which has been reaffirmed on two occasions in the intervening years, a school can show compliance with Title IX by:

(1) having the percentages of male and female athletes substantially proportionate to the percentage of male and female students enrolled at the college;

(2) having a history and continuing practice of expanding participation opportunities for the underrepresented sex (almost always women);

(3) "fully and effectively" accommodating the interests and abilities of the underrepresented sex.

In practice, however, the test has collapsed into a single prong, the first. Colleges and universities, afraid of the interpretations that courts might give the "mushier" and more subjective second and third prongs, have defaulted to the "substantial proportionality" test. This has led to a far stricter application of Title IX than was originally intended, which naturally, some groups applaud and other groups lament. (Scott Jaschik, "Changing the Rules," Inside Higher Ed., 3/22).

Now this has all changed. In a letter sent last week to universities nationwide, the Department of Education sets out a method whereby schools can comply with the third prong, alleviating the de facto need to fall back on the 'substantial proportionality' prong. The policy clarification recommends the use of an online survey to gauge the interests of females on campus.

When the Model Survey is properly administered to all full-time undergraduate students, or to all such students of the underrepresented sex, results that show insufficient interest to support an additional varsity team for the underrepresented sex will create a presumption of compliance with part three of the three-part test and the Title IX regulatory requirement to provide nondiscriminatory athletic participation opportunities. The presumption of compliance can only be overcome if OCR finds direct and very persuasive evidence of unmet interest sufficient to sustain a varsity team, such as the recent elimination of a viable team for the underrepresented sex or a recent, broad-based petition from an existing club team for elevation to varsity status. (emphasis added)

Not surprisingly, a number of groups and people are not happy with this change. Already, the National Women's Law Center has issued a statement decrying the change and Ted at Women's Hoops correctly points out the politics behind the announcement. And as Eric at Off Wing points out, the story has not yet hit the MSM. Once it does, the criticisms will be loud and a debate may emerge about the purposes and successes of Title IX.

I have two preliminary thoughts. The first is, bring on the debate about Title IX. I think it is time for a wholesale re-examination of the statute, its purpose and its application to athletics. I agree completely that women's athletics has not reached the level of men's athletics, but this seems to be much more a product of interest (from fans, not participants) than from lack of access. Girls and women now have incredible opportunities for athletic participation, beginning in grade school and continuing up through college. Perhaps Title IX does not need to be applied as strictly as it did in the 1980s and 90s.

Second, the online survey appears to be completely in line with the 1979 Policy Interpretation. Many of the critics, I believe, will be upset because they like the fact that 'substantial proportionality' is the only current method of evaluation. But this is not what Title IX was supposed to do. In an attempt to achieve strict compliance, schools have been cutting men's sports and elevating women's sports to varsity status, regardless of the level of interest. Under the new policy, schools will be able to gauge student interest in athletics and act accordingly.

Of course, the new methodology will not be perfect. No survey is. But I am not persuaded by the arguments made by the NWLC, who argued that no one opens and responds to email surveys. On the contrary, if students have enough of an interest to play a varsity sport, they should have enough interest to fill out a survey. At Duke, I knew a number of women who played softball, which is a non-varsity club sport. I guarantee that if an email survey had been distributed, these women would not only have filled it out, they would have mobilized all of their friends to do so as well. Sufficient interest (if not overstated interest) will come through on a survey.

The key concern should not be the survey, but rather its implementation. Scheming universities should not be permitted to send out the email when it knows it will receive few responses (i.e., during exams or over vacations). In addition, adequate time must be allowed for students to respond. Finally, good records must be kept so that the government can make an independent evaluation if needed. However, if these procedural safeguards are ensured, the online survey seems to be an excellent mechanism for ensuring compliance with Title IX, not through strict numbers and quotas, but rather through the actual interests of the student body.

Equality for all students, male and female, demands nothing less.

UPDATE: You can read the latest on the Title IX development here.

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