Title IX: Everything Old is New Again

Jul 2, 2010

By Barbara Osborne
Although the legislation is almost 40 years old, gender equity in intercollegiate athletics programs has not yet been achieved. The Office for Civil Rights in the U.S. Department of Education has vowed to step up enforcement. Vice President Joe Biden and U.S. Secretary of Education Arne Duncan announced on April 20, 2010, that a “Dear Colleague” letter revoking the 2005 “Intercollegiate Athletics Policy Clarification: The Three-Part Test – Part Three” was issued. The “Dear Colleague” letter was followed by a Question-and-Answer document, a Fact Sheet, and a public vow by Assistant Secretary Russlynn Ali at the NCAA Gender Equity and Issues forum on April 26 that OCR would step up enforcement of Title IX. It is expected that between six and 10 colleges and universities will be fully investigated for Title IX compliance in the upcoming year.
The “Three-Part Test” comes from the 1979 Policy Interpretation, and allows institutions to show that they are effectively accommodating the interests and abilities of the underrepresented sex by meeting one of the following three tests:
1) Proportionality: the percentage of athletics opportunities for male and female athletes reflects the percentage of men and women in the undergraduate student body;
2) History: the institution has had a continuing practice of expanding opportunities for the underrepresented sex; or
3) Interests and abilities: the institution fully and effectively meets the needs of the underrepresented sex with its current athletics opportunities.
The 2005 policy clarification allowed colleges and universities to use an on-line survey of incoming freshmen to determine whether the institution was meeting the need to provide athletics opportunities (Part 3 of the Three-Part Test above). The survey was controversial, as critics argued that the method for conducting the survey, as well as the presumption that a non-response indicated lack of interest, was flawed. The survey also appeared to place the burden on the student to express interest rather than on the institution to provide opportunity. The NCAA discouraged member institutions from using the model survey or the procedures prescribed for administering it in order to achieve compliance.
The new “Dear Colleague” letter restores a broader approach to proving that an institution is meeting the interests of the underrepresented sex. Historically, surveys were only one of many methods used to evaluate interest. Other indicators include participation in intramural and club sports at the institution, and participation at the high schools and amateur club teams in the communities that the institution would typically recruit from geographically. Actual requests by students to add a sport, and interviews with students, coaches, and administrators should also be considered.
An evaluation of interest is just the first step in determining whether the institution is meeting the interests and abilities of the underrepresented sex. Students must also have the ability to compete and a reasonable expectation of competing. This can be determined by evaluating the level of experience and accomplishment of the students competing in intramural or club teams. Looking at the competitive offerings of typical opponents, such as the members of the institution’s athletics conference, as well as other institutions in the geographic area that your institution most often competes against will also serve to determine whether there is a reasonable expectation of competition. It is clear that the 2010 “Dear Colleague” letter places the burden on schools to affirmatively indicate that the institution is satisfying the interests and abilities of the underrepresented sex.
A popular misconception is that satisfying one of the three parts of the three part test means that the institution is in compliance with Title IX. However, an OCR investigation will examine whether the institution satisfies all of the requirements of the 1975 Regulations. First, athletics-related financial assistance (scholarships) granted to male and female student-athletes will be measured to determine if the opportunities to receive grant-in-aid are proportionate to the percentage of male and female student-athletes participating. This is strictly a measure of proportion of aid to male and female student-athletes and is not compared to a proportion of men and women in the student undergraduate population. Next, the benefits and opportunities that the athletes of each sex receive will be measured by 11 program component areas, including:
• equipment and supplies
• scheduling of games and practice times
• travel and per diem allowances
• opportunities to receive academic tutoring, assignment, and compensation of tutors
• opportunity to receive coaching, assignment, and compensation of coaches
• provision of locker rooms, practice, and competitive facilities
• provision of medical and training facilities and services
• provision of housing and dining facilities and services
• publicity
• provision of support services, and
• recruitment of student athletes.
Each of the program component areas measures the men’s program as a whole against the women’s program as a whole. Inequities identified in any program component do not offset those in other areas. Finally, OCR will examine whether the interests and abilities of the student body are effectively accommodated. This is measured by satisfying one of the parts of the Three-Part test. The OCR analysis will also investigate whether there are equal opportunities to compete for both men and women and whether those opportunities are at equivalent levels of competition.
From a risk management perspective, all institutions should be regularly conducting Title IX evaluations. This responsibility would logically fall under the Title IX coordinator, which every institution is required by law to designate. Some institutions choose to create a Title IX committee composed of university administrators, faculty, athletics administrators, coaches, and student-athletes to complete the task. However, contracting a Title IX attorney or consultant to conduct a thorough review may be more efficient as well as effective. Experts, such as the attorneys in the Collegiate Sports Practice at Ice Miller, LLP, understand the subtle nuances of the law and are up to date with the latest court decisions and OCR findings. The evaluation will be conducted from an impartial view, allowing more forthright recommendations. Although some university administrators worry that knowledge of potential Title IX violations will place them in an even more difficult position should OCR investigate, an expert will assist the institution in creating a long-term plan to ultimately achieve compliance. The promises made by OCR to increase Title IX investigations should put Title IX compliance at the top of every athletics department’s list of priorities.
Osborne is a professor at the University of North Carolina at Chapel Hill
And is Of Counsel with the law firm of Ice Miller, LLP


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