The U.S. Department of Education has made it easier for institutions to prove they are complying with a federal law that prohibits discrimination on the basis of gender in education programs and activities.

The Office for Civil Rights (OCR) issued a clarification on Title IX March 18 that specifically highlights a new analysis of the third prong of a three-part test used to assess whether institutions truly accommodate the interests of all student-athletes in a gender-equitable manner.

The new analysis places the onus on government investigators or protesting students to prove that an institution is not providing enough opportunities for women to pursue their athletics interests and abilities.

According to an OCR statement, an institution will be deemed compliant with Title IX if, "despite the under-representation of one sex in the intercollegiate athletics program, the institution is fully and effectively accommodating the athletics interests and abilities of its students who are under-represented in its current varsity athletics program offerings."

The OCR provided an example of an Internet-based interest survey on its Web site, along with tips on how to distribute the questionnaire -- via e-mail -- and receive the highest volume of responses. Institutions would be deemed in compliance if those polled did not express an interest in expanding athletics -- or if they did not respond at all.

The OCR's three-part test for Title IX compliance involves the following components:

• 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.

In the mid 1990s, Brown University attempted to prove its compliance with the third prong in a court case brought by female student-athletes who wanted the reinstatement of two women's teams to varsity status. The university claimed that it provided sufficient athletics opportunities through its expansive women's program, but a federal court ruled that Brown's women's participation was not proportionate to the undergraduate enrollment, that the institution was not demonstrating a history of expanding women's programs, and that it was not meeting the interests of the women from the sports in question. On April 21, 1997, the U.S. Supreme Court refused to hear Brown's appeal of the decision.

An OCR clarification issued in 1996 continued the federal government's support of the trial court's decision, calling only the proportionality prong a "safe harbor" for Title IX compliance.

However, the March 18 explanation asserts that institutions will be considered compliant with the third prong "unless there exists a sport(s) for the under-represented sex for which all three of the following conditions are met: (1) unmet interest sufficient to sustain a varsity team in the sport(s); (2) sufficient ability to sustain an intercollegiate team in the sport(s); and (3) reasonable expectation of intercollegiate competition for a team in the sport(s) within the school's normal competitive region."

Essentially, schools would not be required to add new women's sports based on student interest unless all three of those conditions are met.

Mike Moyer, executive director of the National Wrestling Coaches Association, said he believes the change is a "step in the right direction."

"It's the first time there's a common-sense alternative to the gender quota that institutions have been bound to," he said. "This certainly provides more clarification on measuring the interests and abilities of students, and universities should feel more comfortable that it's going to hold up in the courts."

The March 18 clarification, like several before, emphasized that eliminating men's programs to create parity is a "disfavored practice" that should not be used to reach Title IX compliance. Over time, many schools have moved toward proportionality by eliminating men's teams (although critics say that cost savings, and not Title IX compliance, have been the actual motivation in a number of cases). Sports such as wrestling and other men's Olympic sports have been especially affected.

Using e-mail as a means to gauge interest in athletics among women drew strong criticism from many sources, including NCAA President Myles Brand.

"I am disappointed in the way the Department of Education promulgated its clarification of Title IX regulations with regard to determining the interest level of females in athletics. The department issued its clarification without benefit of public discussion and input," Brand said. "The e-mail survey suggested in the clarification will not provide an adequate indicator of interest among young women to participate in college sports, nor does it encourage young women to participate -- a failure that will likely stymie the growth of women's athletics and could reverse the progress made over the last three decades. One need only observe the Division I Women's Basketball Championship that is underway to understand the effect of encouragement for women to participate, the high level of play at which women can compete and the public interest in women's athletics."

Christine Grant, associate professor and former athletics director at the University of Iowa, said the decision saddened her, but hadn't erased her optimism.

"It's taken us this long to get to about 32 percent of the participation figures for women in athletics, both at the high-school and collegiate level, and now the federal government, instead of encouraging institutions to do the right thing, opens a loophole to allow them to do less than what the writers of Title IX intended," she said. "Even if the Bush administration does this, which makes it easier for institutions to avoid complying with the spirit of Title IX, I do think the parents will speak up, and I think universities will listen. And they will continue their progress toward equal opportunity."

Eric Pearson, executive director of the College Sports Council (a national coalition of sports associations that has challenged the application of law), disagreed with the perception that the clarification weakened Title IX. He said the change actually strengthens the law, giving institutions more flexibility in complying.

"I hope this returns Title IX to its original intent -- to prevent discrimination on the basis of gender and provide a fair opportunity to play sports for everybody," he said.