Nancy Hogshead-Makar and Donna Lopiano, "Foul Play: Department of Education Creates Huge Title IX Compliance Loophole"
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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.