Foul Play: Department of Education Creates Huge Title IX Compliance Loophole

Preface
by Nancy Hogshead-Makar

On March 17, 2005, the Department of Education issued new guidelines for compliance with Title IX, termed a "Clarification". At that time, many organizations - including the NCAA itself - expressed serious concerns condemning the Clarification as an attempt to undermine the efficacy of Title IX enforcement by allowing schools and universities to demonstrate compliance solely through faulty e-mail "interest" surveys. Since then, a wide array of organizations, including athletic, civil rights, and academic groups have continued to object to the Clarification on a number of grounds.[1] These organizations include the Women's Sports Foundation, the National Women's Law Center, the Leadership Conference on Civil Rights, the National Education Association, the YMCA and, as mentioned, the NCAA.[2]

Due to these concerns, the Senate Appropriations Committee requested that the Department prepare a report to address the substantial negative public response to the Clarification. The Department recently released its report in March of 2006. Unfortunately, the Department's report is merely an official line endorsement of the Clarification, without critical analysis. The report glosses over the most glaring problems with the Clarification, such as allowing e-mail survey non-responses to be interpreted as a lack of interest.

A closer look at the objective data underlying the report tells an entirely different story. Closely read, the report confirms that the Department's controversial Clarification is a seismic change in course, not a mere explanation or elucidation of existing policy. Instead, the Clarification provides an avenue for schools to shun their fundamental responsibility of offering equal athletic opportunities for women in a manner never before permitted.

For example, the Department's new report concludes that for the 14-year study period, the Department's Office for Civil Rights (OCR) has never allowed a school or university to rely upon a survey alone to deny women additional sports opportunities. In other words, the Clarification would allow what has historically been entirely impermissible to become wholly acceptable. Moreover, the report found that most schools considered many factors other than surveys in determining the extent of women's interest in sports, such as participation in high school and community sports, coaches' opinions and participation in club or intramural sports.

Interestingly, the report documents 54 cases where schools attempted to justify low numbers of athletic opportunities for women under Prong 3, which means that the school purportedly is providing all the interested women with opportunities to participate in athletics. These schools relied on surveys and other indicators, and when the previously-required factors were considered, the schools were ultimately required to add a total of 70 new women's athletic teams.

In each of the six cases where schools attempted to use interest surveys alone to assert compliance under Prong 3, the OCR rejected each claim of compliance. Again, when the OCR evaluated the previously-required additional factors, they found that women were interested in more participation opportunities at these schools. In other words, the report demonstrates that the OCR's active intervention was critical in ensuring compliance when schools attempted compliance on surveys and related data. The Clarification, however, imposes no such requirement, and the report sidesteps this apparent contradiction in the data. In short, the new report actually supports the conclusion that interest surveys alone are woefully inadequate at showing Title IX compliance. How the Clarification can be rubber-stamped with this type of underlying contradictory data is less than obvious.

In summary, the overwhelming evidence - including the data underlying the Department's own new report - demonstrates the Clarification's serious methodological flaws, which have been exposed by commentators, interest groups, and prior judicial decisions. As Neena Chaudhry, senior counsel at the National Women's Law Center said in response to the report, "The report confirms that the Department set too low a bar for Title IX compliance - and that that standard is unprecedented in OCR's enforcement efforts. The Department of Education should rescind the policy and instead focus on enforcing the law so that women can finally enjoy equal athletic opportunities at our nation's schools and colleges and universities."