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."

Executive Summary[3]

The Department of Education's March 17, 2005, letter[4] 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,[5] contradict the Department's prior pronouncements[6] and its Title IX Athletics Investigator's Manual,[7] and ignore the reality that high schools and colleges create their sports teams and sports offerings sometimes years in advance by encouraging (in the case of high schools) and recruiting (in the case of colleges) prospective athletes to their campuses. The "model survey" ignores this reality by measuring only the interest of current, existing students, who were neither encouraged nor recruited for teams or sports beyond those the schools or colleges provided at the time. As such, the survey is an inherently biased and illogical methodology that merely entrenches the inequalities in the institutions' predetermined, existing sports programs.

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 Department's "model survey" 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.

Some experts in the use of survey instruments have found that surveys measure attitude, rather than predicting behavior.[8] They assert that male respondents are simply more likely than women to profess an interest in sport, regardless of their eventual willingness to show up for a team and play. In other words, professing interest does not predict behavior well and should not be used to predict actual levels of participation when nondiscriminatory opportunities are made available to boys and girls.[9] To use the results of interest surveys as the sole justification for withholding participation opportunities is an improper use of attitude survey methodology that the courts and policy-makers have repeatedly rejected due to their irrelevance and bias.

And what if the students do not respond to the e-mailed "model survey"? The letter says, "Although rates of non-response may be high with the e-mail procedure, under these conditions, OCR will interpret such non-response as a lack of interest." To get a chance to play, females have to respond to their e-mails, a requirement that male athletes never have to meet. Experts in survey methodology confirm that inferring non-responses as "no interest" turns survey empiricism on its ear. A general rule of thumb is that only around 20% of persons who receive a survey respond to it. The results of the respondents are then generalized to the population of interest. If half of the respondents indicated they were interested in sports, then the school should assume that half of the female students are interested. To demonstrate the bias in the proposed model survey, reverse the OCR approach. A school would send out an email survey and ask students if they have NO interest in a given sport. Non-responses would then be interpreted as affirmative interest.

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]

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 [12]
• 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

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. [13]

The letter and "model survey" also conflict with the department's Title IX Athletics Investigator's Manual[14], 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.[15] 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.[16]

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.

Endnotes

1. Academic experts, in particular, have listed the flaws in the Clarification. See "The Center for Research on Physical Activity, Sport & Health (CRPASH) report on the Limitations of the Department of Education's Online Survey Method for Measuring Athletic Interest and Ability on U.S.A. Campuses" at http://www.dyc.edu/crpash/limits_of_online_survey.pdf. [Return to text]

2. A more complete listing of supporting organizations can be found at: http://www.savetitleix.com/who.html. [Return to text]

3. A similar article was first published as commentary on InsideHigherEd.com, March 24, 2005: http://www.insidehighered.com/views/2005/03/24/lopiano). [Return to text]

4. Full text located at: http://www.napequity.org/pdf/Intercollegiate%20Athletics-OCR.pdf. [Return to text]

5. Cohen v. Brown University, 101 F.3d 155 (1st Cir. 1996) at 198-179. [Return to text]

6. 1996 OCR Clarification of Intercollegiate Athletics Policy Guidance; The Three-Part Test, available at http://www.ed.gov.offices/OCR/docs/clarific.html. [Return to text]

7. Department of Education's Title IX Athletics Investigator's Manual (1990). [Return to text]

8. 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. [Return to text]

9. Donald Sabo and Christine Grant, "Limitations of the Department of Education's Online Survey Method for Measuring Athletic Interest and Ability on U.S.A. Campuses," http://www.dyc.edu/crpash/limits_of_online_survey.pdf. [Return to text]

10. Cohen v. Brown University, 879 F.Supp. 185 at 206. [Return to text]

11. Id. at 207. [Return to text]

12. "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). [Return to text]

13. 44 Fed. Reg. at 71, 417. [Return to text]

14. Valerie M. Bonnette & Lamar Daniel, Department of Education, Title IX Athletics Investigator's Manual (1990). [Return to text]

15. Id. [Return to text]

16. 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." [Return to text]