Executive Summary
While every legal authority has held that this survey
practice cannot be made the sole litmus test for compliance
under Prong 3 of Title IX, the letter sets up just a
situation, totally reversing the current standard. The
letter states that only if the “model survey” is not
administered will it look at the following other factors
which the courts have maintained must all be examined:
-
Requests for the addition of a varsity team (even if no
club team currently exists) or elevation of an existing
club sport to varsity status
-
Participation in club or intramural sports
-
Participation in high school sports, amateur athletic
associations and community sports leagues that operate
in areas from which the institution draws its students
-
Intercollegiate varsity participation rates, as
identified by national and regional intercollegiate
sports governing bodies, in the institution’s
competitive region
Dependence on a single survey methodology also cancels the
Department of Education’s own 1979 Policy Interpretation,
which states that schools are permitted to determine the
athletic interests and abilities of students by
nondiscriminatory methods of their choosing, provided that
all of the following standards are met:
a. The process take into account the nationally increasing
levels of women’s interests and abilities;
b. The methods of determining interest and ability do not
disadvantage the members of an underrepresented sex;
c. The methods of determining ability take into account team
performance records; and
d. The methods are responsive to the expressed interests of
students capable of intercollegiate competition who are
members of an underrepresented sex
The letter and “model survey” also conflict with the
department’s Title IX Athletics Investigator’s Manual ,
which instructs investigating officials to consider other
factors reflecting interests and abilities, such as sports
programs at “feeder” schools and community and regional
sports programs. More importantly, the investigator’s manual
states that a student survey may be a remedial tool to be
used after a determination that an institution has failed
the third prong; a survey is not utilized to determine
compliance in the first instance, however. While a student
survey may be part of a remedy to determine what sports to
add when an institution’s current program fails Prong Three,
it is not a proper test upon which to base compliance.
References
1
Authored by Nancy Hogshead-Makar, Professor of Law, Florida
Coastal School of Law, Olympic Gold Medalist Swimmer and
Donna Lopiano, Ph.D., Chief Executive Officer, Women’s
Sports Foundation. First published as commentary on
InsideHigherEd.com, March 24, 2005:
(http://www.insidehighered.com/views/2005/03/24/lopiano)
2
Full text located at:
3 Cohen v. Brown University, 101 F.3d 155 (1st Cir.
1996) at 198-179.
4 1996 OCR Clarification of Intercollegiate Athletics
Policy Guidance; The Three-Part Test, available at
http://www.ed.gov.offices/OCR/docs/clarific.html.
5 Department of Education’s Title IX Athletics
Investigator’s Manual (1990),
6 This point has been made by, for example, Donald
Sabo, Ph.D., Professor of Sociology, D'Youville College,
Director of the Center for Research on Physical Activity,
Sport & Health. Former President, North American Society for
the Sociology of Sport. Professor Sabo was an expert witness
on research methodology for Cohen v. Brown University, and
has extensively analyzed the methodological problems with
such surveys.
7
Cohen v. Brown University, 879 F.Supp. 185 at 206
8 Id. at 207
9 OCR will determine whether there is sufficient
unmet interest among the institution's students who are
members of the underrepresented sex to sustain an
intercollegiate team. OCR will look for interest by the
underrepresented sex as expressed through the following
indicators, among others:
-
requests by students and admitted students that a
particular sport be added;
-
requests that an existing club sport be elevated to
intercollegiate team status;
-
participation in particular club or intramural sports;
-
interviews with students, admitted students, coaches,
administrators and others regarding interest in
particular sports;
-
results of questionnaires of students and admitted
students regarding interests in particular sports; and
-
participation in particular in interscholastic sports by
admitted students
In addition, OCR will look at participation rates in sports
in high schools
amateur athletic associations, and community sports leagues
that operate in areas from which the institution draws its
students in order to ascertain likely interest and ability
of its students and admitted students in particular sport(s).5
For example, where OCR's investigation finds that a
substantial number of high schools from the relevant region
offer a particular sport which the institution does not
offer for the underrepresented sex, OCR will ask the
institution to provide a basis for any assertion that its
students and admitted students are not interested in playing
that sport. OCR may also interview students, admitted
students, coaches, and others regarding interest in that
sport.
An institution's evaluation of interest should be done
periodically so that the institution can identify in a
timely and responsive manner any developing interests and
abilities of the underrepresented sex. The evaluation should
also take into account sports played in the high schools and
communities from which the institution draws its students
both as an indication of possible interest on campus and to
permit the institution to plan to meet the interests of
admitted students of the underrepresented sex.”
10
44 Fed. Reg. at 71, 417
11 Valerie M. Bonnette & Lamar Daniel, Department of
Education, Title IX Athletics Investigator’s Manual (1990)
12 Id.
13 Id. at 27 "[a] survey or assessment may be
required as a part of a remedy when OCR has concluded that
an institution's current program does not equally
effectively accommodate the interests and abilities of
students."
(from the
Womens Sports Foundation)
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