Foul Play: Department of Education Creates Huge Title IX Compliance Loophole Women’s Sports Foundation Position Paper

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.html¹

Cohen v. Brown University, 101 F.3d 155 (1st Cir. 1996) at 178-179.

While these legal authorities have 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

Yet these are the same factors that schools formerly had to adhere to under the former policy.

Dependence on a single survey methodology cancels the Department of Education’s 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:

1. The process take into account the nationally increasing levels of women’s interests and abilities;
2. The methods of determining interest and ability do not disadvantage the members of an underrepresented sex;
3. The methods of determining ability take into account team performance records; and
4. The methods are responsive to the expressed interests of students capable of intercollegiate competition who are members of an underrepresented sex.²

The letter and “model survey” also conflict with the department’s Title IX Athletics Investigator’s Manual³, 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.⁴ 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.⁵

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 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. It ignores the effect of recruiting and the self-selection of athletes with existing desired sports programs. Yet the Department’s letter and “model survey” contravene the law’s very purpose by further disadvantaging women via a biased and rejected methodology.

1.  “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:
   1. requests by students and admitted students that a particular sport be added;
   2. requests that an existing club sport be elevated to intercollegiate team status;
   3. participation in particular club or intramural sports;
   4. interviews with students, admitted students, coaches, administrators and others regarding interest in particular sports;
   5. results of questionnaires of students and admitted students regarding interests in particular sports; and
   6. 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.” (emphasis added). [↩]

2. 44 Fed. Reg. at 71, 417. [↩]
3. Valerie M. Bonnette & Lamar Daniel, Department of Education, Title IX Athletics Investigator’s Manual (1990). [↩]
4. Id. [↩]
5. 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.”  [↩]