QUESTIONS AND ANSWERS ON THE DEPARTMENT OF EDUCATION'S
"CLARIFICATION" OF TITLE IX POLICY1

On March 17, 2005, the Department of Education, without any notice or opportunity for public input, released an "Additional Clarification of Intercollegiate Athletics Policy: Three-Part Test - Part Three" that threatens to turn back the clock on the progress women and girls have made in sports. This new Clarification changes long-standing Title IX policy by permitting schools to rely exclusively on the results of an e-mail survey to claim that they are fully meeting female students' athletic interests and thus complying with Title IX. The Clarification allows schools to treat a student's failure to respond to the survey as evidence of that student's lack of interest in athletics opportunities, and states that schools may presume that a young woman's self- assessment of lack of ability to compete at the varsity level reflects an actual lack of ability.

These Questions and Answers address some of the issues raised by the new Clarification.

1. Are women less interested in athletics than men?

A: No. The dramatic increase in girls' and women's participation in sport since Title IX was passed in 1972 (by more than 400% at the college level and more than 800% in high schools) demonstrates that it was lack of opportunity - not lack of interest - that kept them out of high school and college athletics for so many years. Before Title IX, women were told that they were not as interested in law or medicine as men were. But given equal opportunity to pursue these interests, women thrive in these fields. Similarly, given equal athletic opportunities, women will rush to fill them; the remaining discrepancies in sports participation rates are the result of continuing discrimination in access to those opportunities.

Additionally, it simply defies reality for colleges to claim a lack of interest in sports participation on the part of female athletes. With 2.8 million girls playing high school sports and hundreds of thousands more participating in Olympic sports not traditionally offered in schools and colleges - and with only 200,000 female participation opportunities available at the college level - it is clear that there are more than sufficient numbers of women interested in playing on college teams.

2. Do interest surveys really measure women's interest in sports?

A. No. As courts have recognized, surveys are likely merely to measure the discrimination that has limited, and continues to limit, sports opportunities for women and girls. As the U.S. Court of Appeals for the First Circuit stated in Cohen v. Brown University:
    Interests and abilities rarely develop in a vacuum; they evolve as a function of opportunity and experience…Women's lower rate of participation in athletics reflects women's historical lack of opportunities to participate in sports…Moreover the Supreme Court has repeatedly condemned gender-based discrimination based upon archaic and overbroad generalizations about women. 2
In addition, experts in the use of survey instruments have condemned the use of surveys of interest -- which measure attitude -- as a way to predict behavior. Even assuming that men will be more likely than women to profess an interest in sport, women's lower levels of expressed interest -- given their historic and current exclusion from a fair share of participation opportunities -- cannot be used to predict their actual levels of participation when non-discriminatory opportunities are made available. To use the results of interest surveys as a justification for withholding participation opportunities would be an improper use of such methodology.3

3. May a survey alone permissibly be used to demonstrate compliance with the law?
A: No. While the new Clarification allows schools to use surveys alone to demonstrate compliance with the law, prior and long-standing Department of Education policies make clear that a survey of student interest may be only one of many factors that a school is required to evaluate to show that it is fully meeting women's interests. Under those prior policies - which meet the requirements of the law -- schools are also required to consider: requests by students to add a particular sport; participation rates in club or intramural sports; participation rates in sports in high schools, amateur athletic associations, and community sports leagues in areas from which the school draws its students; and interviews with students, coaches, and administrators.4 The new Clarification eliminates the obligation to consider these important criteria.

4. Should female students have the burden of showing that they are entitled to additional sports opportunities?
A. No. Where schools are not providing equal participation opportunities for women or continuously improving opportunities for them - the premise for the use of the interest survey sanctioned under the new Clarification -- long-standing Department of Education policies make clear that schools have the burden of showing (and the Office for Civil Rights the burden of rigorously evaluating) that they are nevertheless fully meeting the athletic interests and abilities of their female students. The new Clarification instead forces women to prove that their schools are not satisfying their interests and that they are entitled to additional sports opportunities. Further, the Clarification makes no provision for the Department of Education to monitor or investigate schools' implementation of the model survey or its results, meaning that schools' assertions that they are in compliance with the law can go largely unchallenged. This reversal of prior policy is inconsistent with fundamental principles of equity and is a disservice to girls and women.
5. Does the new Clarification apply to high schools?
A. Yes. The new Clarification states that the same general principles will often apply to intercollegiate and high school athletics programs.5 The Clarification's approach is particularly damaging for students in high schools. At the secondary level, female students are likely to have had few or no sports opportunities that would inform their response to an interest survey. At this stage of their education, it is especially important that students be encouraged to try many different sports, not have their future opportunities limited by what they might have experienced or be interested in at that time.
6. Should schools be permitted to restrict their surveys to enrolled and admitted students?
A. No. By allowing institutions to restrict their surveys to enrolled and admitted students, the Clarification ignores the reality that female students interested in a sport not offered by a school are unlikely to attend that school. Moreover, the Clarification ignores the ways in which schools typically recruit for men's teams. Most colleges assess prospective players regionally or nationally and entice them with scholarship offers or non-financial benefits to apply to and attend an institution. The new Clarification effectively requires women to show that they can fill a new team by relying entirely on students within their schools' current student bodies - a requirement that is not imposed upon men's teams.
7. Should schools be permitted to treat a failure to respond to the survey as evidence of a lack of interest in participating in sports?
A. No. Response rates to surveys in general -- let alone to e-mail communications -- are notoriously low. There are numerous reasons that students may fail to complete a survey. Students may not have access to - or regularly use -- university e-mail. (Indeed, experts suggest that there are systematic gender and other demographic differences in use of the Internet and e-mail.) Students may not receive an e-mailed survey if that e-mail gets caught in a spam filter, or they may delete an e-mail that looks like it might carry a virus. They may be too busy with other academic or extracurricular commitments to respond to a survey. Even if the e-mail accompanying the on-line survey states that failure to respond will be treated as evidence of lack of interest (as is required by the Clarification), students may delete the e-mail without reading this warning. To treat non-response as evidence of lack of interest is methodologically unsound and unfair to young women.
8. Is it valid to presume that young women's self-assessment of lack of ability to compete at the varsity level reflects an actual lack of ability?
A. No. The Clarification states that "OCR will presume that a student's self-assessment of lack of ability to compete at the intercollegiate varsity level in a particular sport is evidence of actual lack of ability." But as the Clarification itself recognizes, "a student may have athletic skills, gained from experience in other sports, which are fundamental to the particular sport in which the student has expressed an interest."6 A high school swimmer may, for example, have the fundamental skills to participate on a collegiate crew team; a former soccer player may be able to compete in track. Under prior Department policies, moreover, schools are expected to seek the opinions of coaches and other experts in making assessments about women's abilities to compete at a varsity level.7 The new Clarification relieves schools of any obligation to conduct an independent assessment.
9. Should schools be permitted to create club teams to "further assess the depth and breadth" of interest that is expressed through the on-line survey?
A. No. The new Clarification allows schools that are "unsure whether the interests and abilities they have measured will be sufficient to sustain a new varsity team" to "create a club or intramural team to further assess those interests and abilities."8 This means that schools may postpone providing equal opportunity to their female students, even where those students have already surmounted the extraordinarily high hurdles set by the Clarification for them to prove their interest and ability to compete.
10. Why is the new Clarification so damaging for women's sports opportunities?
A. If used by schools, the new Clarification will likely perpetuate the cycle of discrimination to which female athletes have been, and continue to be, subjected. The Clarification provides an incentive for schools to use a flawed and unfair interest survey as the sole means to measure whether they are providing equal opportunities to their female students. For the reasons set forth above, the survey results will likely understate the extent of women's interest in playing sports, and will thus likely freeze women's participation at its current level - a level that continues to reflect continuing discrimination against female athletes. The Clarification also eliminates the incentive for schools to provide truly equal opportunities for female athletes or to take initiative to continue enhancing participation opportunities for them.

Moreover, the Clarification conflicts with a key purpose of Title IX - to encourage women's interest in sports and eliminate stereotypes that discourage them from participating.9 In fact, it is a core purpose of education to expose students to new ideas and to cultivate the undeveloped talents of our nation's youth. If they were never exposed to new ideas, all of our five year olds would grow up to be firefighters, ballerinas, paleontologists and super heroes. By undercutting the incentive for schools to provide this type of exposure, the Clarification is not only inconsistent with Title IX, but undermines a fundamental educational goal.

11. 11. Are schools at risk if they use the survey approved in the Clarification?
A. Yes. Because the new Clarification authorizes an approach to providing equal opportunity for female athletes that falls far short of Title IX requirements, schools that choose to use the survey authorized by the Clarification as their sole means of evaluating compliance with the law could be vulnerable to legal challenges by students denied access to participation opportunities as a result. If those challenges are successful, students could be entitled to monetary relief, among other remedies.
For further information, contact Ranit Schmelzer at (202) 588-5180 or www.nwlc.org.

1 These Questions and Answers have been prepared by the National Coalition for Women and Girls Education (NCWGE), a nonprofit coalition of more than 50 diverse organizations dedicated to improving educational opportunities for girls and women. Established in 1975, NCWGE has been a major force in developing national education policies that benefit all women and girls

2 Cohen v. Brown University, 101 F.3d 155, 178-79 (1st Cir. 1996), cert. denied, 520 U.S. 1186 (1997).

3 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 the Cohen v. Brown University case, and has extensively analyzed the methodological problems with such surveys.

4 See, e.g., Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Test (1996), available at www.ed.gov/about/offices/list/ocr/docs/clarific.html.

5 Additional Clarification on Intercollegiate Athletics Policy: Three Part Test - Part Three (March 17, 2005), page 3.

6 Id., page 10.

7 See 1996 Clarification.

8 Additional Clarification on Intercollegiate Athletics Policy: Three-Part Test - Part Three (March 17, 2005), page 10.

9 Neal v. Board of Trustees of the California State Universities, 198 F.3d 763 (9th Cir. 1999).