Executive Summary
The Department of Education’s March 17, 2005 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 that 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 school did not recently drop a
women’s team or had a recent request for elevation of
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.
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.
Accordingly, the Women’s Sports Foundation calls upon the
Secretary of Education to withdraw the March 17 letter and
model survey.
A “Survey” Is An Invalid Measure of Interest in
Participation
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.
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.
Male Athletes Have Never Been Required to Prove Interest In
Order To Obtain Participation Opportunities
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.
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, another requirement that male
athletes never have to meet.
Reliance on Existing Student Body for Assessment is Wrong
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.”
Disincentive for Schools and Colleges to Develop Club Sports
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 only be overcome if the
OCR finds direct and very persuasive evidence of unmet
interest, such as if a school either discontinues a viable
existing team or if they fail to upgrade a club team to
varsity status when there is 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 doesn’t exist, there
cannot be a “broad-based petition from an existing club
team,” a new standard established by the letter.
Model Survey as Sole Litmus Test Defines Current Legal
Authority
Every legal authority has disallowed using surveys of
existing students as the sole measure of compliance,
including:
-
IX
Policy Interpretation, 44 Fed. Reg. 71415 (1979 policy)
-
Valerie M. Bonnette & Lamar Daniel, Department of
Education, Title IX Athletics Investigator’s Manual
(1990)
-
1996
OCR Clarification of Intercollegiate Athletics Policy
Guidance; The Three-Part Test, available at http://www.ed.gov/about/offices/list/ocr/docs/clarific.html
-
Cohen v. Brown University,
101 F.3d 155 (1st Cir. 1996) at 178-179.
to page 2
click here for other articles