“Proportionality” vs. Student Interest
Since Title IX has become law, the Office for Civil Rights has issued a series of memos – in 1979, 1996, 2003 and 2005 – which advance a “three-prong test” to assess whether an institution (1) offers opportunities for sports participation that are proportionate to the enrollments for each gender, or (2) has established a history and ongoing practice of increasing opportunities for the under-represented gender, or (3) has fully accommodated the athletic interests of the under-represented gender.
That it has required three clarifications is testimony to how difficult OCR was making things; and as a result, most institutions took refuge in the first prong – “proportionality” - because it was the simplest and most straightforward to measure, a “safe harbor” no matter how badly it affected students.
In 2003, the Commission on Opportunity in Athletics issued 25 recommendations to the Secretary of the US Department of Education, including a number that were critical of OCR’s policy that tended to cause schools to default to the proportionality test. Among the recommendations related to this that were adopted without dissent:
- “The Office for Civil Rights should make clear that cutting teams in order to demonstrate compliance with Title IX is a disfavored practice.”
- “The designation of one part of the three-part test as a ‘safe harbor’ should be abandoned in favor of a way of demonstrating compliance with Title IX’s participation requirement that treats each part of the test equally. In addition, the evaluation of compliance should include looking at all three parts of the test, in aggregate or in balance, as well as individually.”
A number of the other adopted recommendations were designed to make compliance clearer and easier under the second and third tests as a way to reduce reliance on the more easily quantified proportionality test that had evolved into the “only” test.
One of the results of the 2003 Commission recommendations was the development and dissemination in 2005 of a simpler web-based survey model, which was criticized by some observers, but had been designed in response to input that the 1996 “clarification” had been so ambiguous that institutions “could not determine when compliance had been achieved under Prong Three.”
On April 1, 2010, the US Civil Rights Commission found that the Department of Education’s 2005 model survey provides “the best method available for achieving compliance under prong three.” The Commission recommended that “the regulations be revised to explicitly take into account the athletic interests of both sexes rather than just the interests of the under-represented sex, restoring Title IX to its original goal of providing equal opportunity for individuals of both sexes.”
What a great idea!
But on April 20, a “Dear Colleague letter” from the assistant secretary for Civil Rights of the US Department of Education provided another clarification, this one titled “Intercollegiate Athletics Policy Clarification: The Three-Part Test – Part Three,” withdrawing the 2005 clarification and all related documents accompanying it, including the “User’s Guide to Student Interest Surveys Under Title IX” and the related documents issued by the Department in March of 2005.
This latest clarification replaces the model survey with 12 pages of factors to be considered when assessing student interest, all of which is open to interpretation and evaluation and will likely have the result of discouraging schools’ use of the third prong and their reliance again on only the first prong (proportionality) to assure Title IX compliance.