The NCAA News - News and Features

August 3, 1998

OCR issues clarification to 25 schools

The U.S. Department of Education's Office for Civil Rights (OCR) has issued a technical assistance letter to the 25 institutions named in complaints regarding the equitable allocation of athletics scholarships, which the National Women's Law Center filed with OCR 13 months ago.

The letter from OCR clarifies its Title IX investigator's manual on compliance standards for athletics scholarships with regard to substantial proportionality, and, for the first time, specifies the percent disparity that will be tolerated under normal circumstances.

"If any unexplained disparity in the scholarship budget for athletes of either gender is 1 percent or less for the entire budget for athletics scholarships, there will be a strong presumption that such a disparity is reasonable and based on legitimate and nondiscriminatory factors. Conversely, there will be a strong presumption that an unexplained disparity of more than 1 percent is in violation of the 'substantially proportionate' requirement."

"Thus, for example, if men are 60 percent of the athletes, OCR would expect that the men's athletics scholarship budget would be within 59-61 percent of the total budget for athletics scholarships for all athletes, after accounting for legitimate nondiscriminatory reasons for any larger disparity."

At institutions where 1 percent of the entire athletics scholarship budget is less than the value of one full scholarship, OCR will presume that a disparity of up to the value of one full scholarship is equitable.

The letter also points out that "even if an institution consistently has less than a 1 percent disparity, the presumption of compliance with Title IX might still be rebutted if, for example, there is direct evidence of discriminatory intent."

OCR acknowledges that "there has been some confusion in the past with respect to the Title IX compliance standards for scholarships," but the letter rejects the use of certain statistical tests, the application of which would "result in a determination of compliance despite the existence of a disparity as large as 3-5 percent."

"We would like to clarify that use of such statistical tests is not appropriate in these circumstances. These tests, which are used in some other discrimination contexts to determine whether the disparities in the allocation of benefits to different groups are the result of chance, are inapposite in the athletics scholarship context because a college has direct control over its allocation of financial aid to men's and women's teams, and because such decisions necessarily are sex-based in the sense that an allocation to a particular team will affect only one sex."

The letter also affirms that, "wholly apart from any obligation with respect to scholarships, an institution with an intercollegiate athletics program has an independent Title IX obligation to provide its students with nondiscriminatory athletics participation opportunities."

Reports that OCR will not apply these standards until 2000-2001 are incorrect. As stated in the letter and confirmed by its author, Mary Frances O'Shea, "OCR will apply the presumptions and case-by-case analysis ... for the 1998-99 academic year."