In the 10 weeks since the federal government issued a clarification on Title IX policy allowing institutions to use a survey to gauge women's interest in athletics, the decision has been both lauded and derided by groups on opposite ends of the Title IX spectrum.

Groups such as the College Sports Council, a national coalition of sports organizations that has challenged the application of Title IX, and the National Wrestling Coaches Association praised the clarification for providing schools with another option for complying with the anti-discrimination law. Traditionally, institutions have found proportionality -- male and female athletics participation that is proportional to undergraduate enrollment Ñ to be the only safe harbor under Title IX policy.

But representatives from organizations such as the National Women's Law Center and the Women's Sports Foundation called the clarification an attack on the anti-discrimination legislation. Advocates particularly criticized the suggestion by the Department of Education's Office for Civil Rights (OCR) that the model surveys could be distributed to incoming female students via e-mail and that any surveys that weren't returned could be coded as a lack of interest.

Officials of some advocacy groups have hinted that a future lawsuit is possible, which calls into question the makeup of the federal courts that could hear such a case. The Supreme Court has long held a delicate balance on Title IX issues, and with three justices over the age of 75 and Chief Justice William Rehnquist in ailing health, new appointments seem likely in the coming years.

OCR officials, however, believe the new approach will withstand any legal challenges because the survey was constructed after more than a year of work by researchers in the Department of Education, and that e-mail was only one of the suggested methods of distribution.

Assistant Secretary for Civil Rights James Manning, who wrote the 'Dear Colleague' letter outlining the clarification, and another OCR official recently made presentations at the NCAA Regional Rules Seminars in San Francisco and Orlando, explaining the clarification directly to the people who will be using it. Manning opened his remarks in Orlando by saying he was disappointed that the NCAA Executive Committee had adopted a resolution in April calling for recission of the clarification. The Executive Committee also had urged member institutions to decline use of the procedures set forth in the clarification.

The clarification changes the application of the third prong of a three-part test used to assess whether institutions are complying with Title IX. The test for compliance includes the following options:

• Male-female athletics participation that is proportional to the institution's undergraduate enrollment.
• A continuing history of expansion of athletics programs for the under-represented gender.
• Accommodating the interests and abilities of the under-represented gender.
• The clarification will elevate the third prong of the test by providing a standardized measure of interest. That change seemingly will place less pressure on institutions to have athletics participation that is proportionate to the undergraduate enrollment.

The National Association of Collegiate Women Athletics Administrators and the Women's Sports Foundation joined forces soon after the clarification was announced to organize a letter-writing campaign, urging their members to inform Congress about the clarification and their opposition to it. Donna Lopiano, executive director of the Women's Sports Foundation, said the campaign produced about 13,000 letters. She said her group and other advocacy organizations have been attempting to arrange a meeting with Education Secretary Margaret Spellings, but have been unsuccessful so far.

"We haven't decided what our course of action is going to be, yet. To be sure, though, we want a supportive Congress that knows Title IX is important to voters," Lopiano said.

Mike Moyer, president of the National Wrestling Coaches Association, said he believes any legal action against the clarification and the surveys would be fruitless. The surveys, he said, were developed after years of research by nonpartisan Department of Education employees.

"It's not like they had political appointees doing it," he said. "I think all of these things will increase the likelihood that it would withstand a court challenge."

Moyer, who said students are Òpretty good about expressing what their interests might be,Ó said that objections to distributing the survey via e-mail were unfounded.

"When you really understand what the clarification is, it's really hard for anyone to be against it. What better way to assess the interests of women than to ask them?" he said. "The initial (negative) reaction confirms that with some of these groups that anything short of the quota system is not acceptable."

Supreme Court decision

Earlier this month, Moyer and his group suffered a setback when the U.S. Supreme Court, without comment, declined to reverse a lower-court decision that threw out a National Wrestling Coaches Association lawsuit against the federal government. The group alleged that Title IX policy as interpreted by the courts causes discrimination against men -- the kind of discrimination the law was designed to prevent.

Moyer said the decision did not discourage his group, saying the ruling was based on a technicality.

"It's all been about standing, not about the merits," he said, noting that one of the main points of evidence in their case cannot be denied -- that men's teams in Olympic sports continue to be eliminated "at an alarming rate all over the country."

In the lower-court ruling, the Washington, D.C., Circuit Court of Appeals suggested that the appropriate target for the lawsuit would be individual institutions, not the federal government. Moyer said that option is among the strategies his group and the coalition of other associations are considering.

"One of the challenges, though, is that the schools are merely doing what the government tells them they have to do," he said. "We don't want to take it out on the schools."

Rita Simon, a member of President George W. Bush's Title IX Commission in 2002 and 2003, was disappointed at the Supreme Court's decision not to hear the appeal. Simon cited a section in the book 'Sports Equality' (which she edited) in which a wrestling coach discussed the negative effect Title IX has had on men's minor sports such as wrestling and to some extent swimming."

However, Lopiano praised the Supreme Court's decision not to take action, saying she wasn't surprised  because the lower courts have been so consistent on the issue. Still, Lopiano said she "never stop(s) worrying" about Title IX.

"All it takes is one or two people in very high-placed positions to wreak havoc with the law," she said, adding that the current clarification may have been promised to Speaker of the House Dennis Hastert at the time of the Title IX Commission.

Hastert, a former wrestling coach, was a proponent of the commission. The Bush Administration, however, adopted only a few recommendations, leaving the interpretation of Title IX relatively unchanged.

Legal ramifications

Any judicial appointments from President Bush have the potential to change the way the policy has been interpreted. Stefanie Lindquist, associate professor of political science and law at Vanderbilt University, said many of the judges in the federal circuit courts were appointed by Republican presidents, who have been in place for 21 of the 33 years since Title IX was signed into law.

She said the D.C. Circuit is regarded as the Òpremier circuitÓ when it comes to administrative agencies and administrative law.

"When they speak on that issue, everyone else listens," she said. "If they rendered a judgment that was contrary to the interests of women under Title IX, that would have some substantial weight with the other circuits, so it could signal a movement toward a more restrictive reading of Title IX."

However, Lindquist said, the key to any judicial decision-making is the Supreme Court. Any change at that level could upset a delicate balance that has guided Title IX interpretation in recent years. Lindquist identified Sandra Day O'Connor as a Òswing justice' in the two most recent Title IX cases decided by the court --  the 1999 case involving liability for student-on-student sexual harassment and the March 2005 decision allowing whistleblowers protection under Title IX. The decisions showed the current justices are taking a more expansive interpretation of Title IX, she said.

"I don't know if it's just a straight attitudinal ideological lineup, with the liberals siding for an expansive interpretation," Lindquist said. "When you think about Title IX, both of the most recent Supreme Court cases really address the broader impact of Title IX, because when it comes to whistleblowers, its ability to be enforced depends in part on people within the local school districts and their willingness to ensure that Title IX is implemented. In the absence of any whistleblower protections, Title IX is just not going to have any of the same oomph. The same applies for sexual harassment."

"O'Connor is one of three justices over the age of 75, along with Rehnquist and Justice John Paul Stevens. O'Connor, appointed in 1981 by Ronald Reagan, has been responsive to sexual harassment and sexual discrimination claims, Lindquist said.

"Losing O'Connor and replacing her with a justice who takes a narrow construction of Title IX could have significant impact on the statute," Lindquist said, though she tempered her prediction with the caveat that Congress could amend the statute if lawmakers disagreed with a narrow Supreme Court interpretation of Title IX.

"It could be done. I think that's what the conservative justices are arguing: Is it the appropriate authority of the courts to interpret a statute expansively when Congress could do it itself once it discovered that the courts were interpreting it very narrowly?" Lindquist said. "I think losing O'Connor would mean that the courts would be less willing to interpret Title IX more expansively, but that might generate some movement in Congress to amend."

Movement in Congress often is time-consuming, Lopiano of the Women's Sports Foundation pointed out, recalling the 1984 case of Grove City College. In that case, the Supreme Court ruled that institutions that received federal funding through students who received federal aid could continue to receive that funding even if the institution did not adhere to Title IX policies. In 1988, Congress passed the Civil Rights Restoration Act, clarifying that their intent was to prohibit discrimination throughout an institution no matter the source of the federal funding.

"That took four years for the legislative government to overturn a judicial decision," Lopiano said. "Nothing is ever safe it seems. You can never stop worrying about Title IX."