Nancy Hogshead-Makar and Donna Lopiano, "Foul Play: Department of Education Creates Huge Title IX Compliance Loophole"
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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. 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 he or she could not find enough women to play.

Reliance on Existing Student Body for Assessment is Wrong

At the college level, athletes are only rarely recruited from the existing student body, but rather are recruited 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 it encourages male athletes to come out for teams, so long as it administers an e-mail survey.

This result reflects an absence of common sense and a dereliction of the Department's authority. A huge Title IX compliance loophole has been created despite a similar 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."[10]

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."[11]