Thursday, April 22, 2010
The White House announced earlier this week that it was strengthening Title IX, the provision that prohibits sex discrimination by educational institutions that receive federal funds, through a new "dear colleague" letter to covered institutions providing guidance on compliance. The letter withdraws a 2005 letter that advised covered institutions to measure compliance with Title IX through a single instrument--a survey of student interest in participating in intercollegiate sports--and reinstated a multi-factor approach to compliance.
The 2005 survey instrument undercounted women's interests in participating and thus resulted in schools underfunding women's sports. The new letter reinstates the multi-factor approach to more accurately account for women's interests.
Earlier executive policy interpretations of Title IX in 1979 and 1996 both set out a three-part test used to determine whether a covered institution violates its obligations under Title IX with respect to intercollegiate athletics:
1. Whether intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments; or
2. Where the members of one sex have been and are underrepresented among intercollegiate athletes, whether the institution can show 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 the members of one sex are underrepresented among intercollegiate athletes, and the institution cannot show a history and continuing practice of program expansion, as described above, whether it can be demonstrated that the interests and abilities of the members of that sex have been fully and effectively accommodated by the present program.
As stated in the 1996 guidance, "[T]he three-part test furnishes an institution with three individual avenues to choose from when determining how it will provide individuals of each sex with nondiscriminatory opportunities to participate in intercollegiate athletics. If an institution has met any part of the three-part test, [the Office of Civil Rights, which enforces Title IX] will determine that the institution is meeting its requirement."
In determining compliance with part three of this test, OCR considered multiple factors under the 1996 guidance. The 2005 guidance changed this and advised institutions to look to just one factor: the results of a survey.
But the survey tended to undercount female interest in sports. The Department of Education wrote this about it:
After careful review, OCR has determined that the 2005 Additional Clarification and the User's Guide are inconsistent with the nondiscriminatory methods of assessment set forth in the 1979 Policy Interpretation and the 1996 Clarification and do not provide the appropriate and necessary clarity regarding nondiscriminatory assessment methods . . . .
The most recent guidance reinstates the multi-factor approach, more accurately reflecting women's interests in intercollegiate sports. As to the third part of the test, the new guidance asks three questions: Is there an unmet interest in a particular sport? Is there sufficient ability to sustain a team in the sport? Is there a reasonable expectation of competition for the team? These questions, in turn, look to several factors, including answers to a survey (the value of which itself is measured by several factors).