New Department of Education guidance on how colleges may comply with Title IX regarding athletic opportunities for women was met with criticism by women鈥檚 advocacy groups, but was welcomed by those who believe enforcement of the law has led to the elimination of some men鈥檚 teams.
The guidance, issued by the department鈥檚 office for civil rights as a 鈥渄ear colleague鈥� letter to educators on March 17, addresses a three-part test the Education Department uses to determine whether school athletics are in compliance with Title IX of the Education Amendments of 1972.
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The law prohibits sex discrimination in educational programs receiving federal funds and is credited with opening up wider athletic opportunities for high school girls and college women. The Education Department鈥檚 Title IX regulations require schools and colleges to provide equal athletic opportunities for both sexes. An institution can prove its compliance by meeting any single prong of the three-part test.
One prong is based on comparing the proportion of female students enrolled in an institution with the percentage of female participation on its sports teams; the second examines whether the school has a history and continuing practice of expanding athletic opportunities for women; and the third looks at whether the school is effectively accommodating women鈥檚 athletic interests and abilities.
Colleges have most often relied on the first prong鈥攖he so-called proportionality test鈥攖o demonstrate compliance, but some advocacy groups say reliance on that test has led to the elimination of some men鈥檚 teams, particularly in gymnastics, swimming, and wrestling, to reach proportionality between men鈥檚 and women鈥檚 sports. College officials have said they have used the proportionality prong because it鈥檚 considered a 鈥渟afe haven鈥� under court rulings.
The new Education Department guidance, which the department termed a 鈥渃larification,鈥� is aimed at convincing institutions that they can safely use the third prong of the compliance test if they periodically survey the underrepresented sex, typically women, in their student enrollments.
The criticism is 鈥渦nwarranted and misinformed,鈥� department spokeswoman Susan Aspey wrote in an e-mail March 24. 鈥淪chools don鈥檛 have to use the survey,鈥� she said. 鈥淎nd they can鈥檛 use the model survey to avoid their Title IX obligations.鈥�
The department also provided a 鈥渦ser鈥檚 guide鈥� to help institutions develop the student surveys, which the guidance suggests can be conducted over the Internet. The guide provides model questions, such as 鈥淒o you believe that you have the ability to participate (in a particular sport) at the level at which you indicated interest?鈥� and advice on how to interpret the results.
The guidance stresses that 鈥渟chools are not required to accommodate the interests and abilities of all their students,鈥� and that the burden of proving an institution is not in compliance with Title IX rests on the department鈥檚 civil rights office.
Although the guidance is primarily aimed at colleges and universities, it will have an impact on high schools, said Bob Gardner, the chief operating officer of the National Federation of State High School Associations in Indianapolis. But high schools have typically relied on the compliance test鈥檚 other two prongs to gauge whether they鈥檙e meeting the athletic needs of girls.
Because they rely less on proportionality, high schools typically have not cut boys鈥� teams, Mr. Gardner said.
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In 2002, then-Secretary of Education Rod Paige formed a 15-member commission to study Title IX and athletics. The panel鈥檚 majority recommended in part to expand interest surveys and that the department look at other ways for schools to prove they鈥檙e complying with the law beyond the three-part test.
Amid an outcry from women鈥檚 advocacy groups, Mr. Paige decided not to alter the department鈥檚 Title IX regulations. Now, women鈥檚 groups and others are protesting the latest development.
鈥淚n our opinion, this is their attempt to do what they couldn鈥檛 do through the commission, because of the public outcry at the time,鈥� said Neena Chaudhry, a lawyer with National Women鈥檚 Law Center in Washington.
Ms. Chaudhry said she was concerned about the Education Department鈥檚 push to have institutions rely on a survey of students, particularly one that is e-mailed to them.
鈥淚f you e-mail that to all your students and they don鈥檛 respond, you can take that as a lack of interest,鈥� she said. 鈥淪urvey response rates are notoriously low, and then you鈥檙e going to e-mail it? Who鈥檚 going to respond to that?
鈥淲e think in a way this allows schools to skirt the law,鈥� Ms. Chaudry added.
Though the model survey asks students what sports they鈥檇 be interested in playing or what they have played, it doesn鈥檛 require schools to look at what athletic opportunities are provided by nearby high schools, she said.
But Mike Moyer, the executive director of the National Wrestling Coaches Association, based in Lancaster, Pa., called the guidance 鈥渁 step in the right direction.鈥�
The association sued the Education Department in 2002, claiming that its Title IX regulations had, in effect, caused schools to cut some men鈥檚 sports. In 2004, the U.S. Court of Appeals for the District of Columbia Circuit upheld an earlier dismissal of the suit, but the association has appealed to the U.S. Supreme Court.
鈥淭his is more clarification, and hopefully it鈥檚 going to result in more university administrations feeling they can lean on this prong,鈥� he said. 鈥淚t provides a clearer direction in how to assess interest. It鈥檚 a more common-sense alternative to gender quotas.鈥�
Laura Capps, a spokeswoman for Sen. Edward M. Kennedy of Massachusetts, the ranking Democrat on the Senate Health, Education, Labor, and Pensions Committee, called the e-mail survey method 鈥減roblematic鈥� and said her boss was worried it could have a negative impact on women鈥檚 athletics.
Myles Brand, the president of the National Collegiate Athletic Association, said the e-mail survey 鈥渨ill not provide an adequate indicator of interest among young women to participate in college sports, nor does it encourage young women to participate鈥攁 failure that will likely stymie the growth of women鈥檚 athletics.鈥�
