Last month's Title IX clarification by the Department of Education's Office for Civil Rights (OCR) split the intercollegiate athletics community. Some quarters denounced the "Dear Colleague" letter and accompanying model survey as a legal loophole that would allow institutions to duck their Title IX responsibilities, but others praised the OCR for helping schools find a better way to comply with the gender anti-discrimination legislation.

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 OCR provided institutions with a sample of an Internet-based survey developed over the last year by statisticians within the federal government. It also provided tips on how to distribute the questionnaire -- via e-mail -- and receive the highest volume of responses. Students who do not return surveys could be considered disinterested in athletics participation, the government said.

Department of Education spokeswoman Susan Aspey said officials developed the new survey after examining 10 years' worth of similar questionnaires used by institutions nationwide. The process took about a year, she said.

"Some of those surveys used by schools to comply with prong three were weak at best and haphazard at worst," she said. "We developed a scientifically sound model survey that schools can choose to use or not."

The use of e-mail in obtaining results concerned critics of the model survey, though Department of Education officials emphasized that e-mail was just one method of distribution. Aspey said that schools that use the survey ideally would provide it to students of both genders so that they would complete it as part of an already established process (for example, when they register for courses online).

"We do live in a digital age now where e-mail and online interactive (tools) are the method of choice," Aspey said. "If that's a method that's popular and that students use and will help schools reach more students, it only makes sense and it's logical that you would use it."

She cautioned that institutions can't simply "ship out an e-mail and then wipe their hands of it and say, 'Hey, we did our best.' "

"Schools can't use this survey to avoid Title IX," she said. "They have to show they've made an effort to reach students."

The decision to permit unreturned surveys to be counted as an indication of no interest drew the most rancor from critics of the decision.

"If I get e-mail from somebody or someplace that is not familiar to me, I automatically delete it only because we've all been so conditioned to beware of spam and all the other Internet interference that takes place right now," said Patriot League Commissioner Carolyn Schlie Femovich. "I think it's suspect at best."

NCAA President Myles Brand said he doubted that responses to an e-mail survey would be sufficient to evaluate interest among young women and said the process could stunt the growth of women's athletics.

However, some supporters of the survey and its distribution through e-mail praised it for the ease of communication. Eric Pearson, executive director of the College Sports Council (an advocacy group that challenges the application of Title IX), commended the OCR for providing such a mechanism.

"Instead of having to go out and start a petition of their own and lobby on campus, (young women interested in starting athletics teams) can show their interest with just the touch of a button on a computer," he said. "I hope that it will provide an opportunity for administrators to be more flexible and really provide opportunities that these athletes really want."

Christine Grant, associate professor and former director of women's athletics at the University of Iowa, said a better method for gauging interest would be to ensure that women realize they have the right to ask for a sport to be elevated to varsity status and to teach them how to make such a request.

Stanford University Athletics Director Ted Leland -- co-chair of the 2003 Commission on Opportunities in Athletics, which examined Title IX policy -- said Stanford students receive many e-mail surveys during their freshman year, and even one more could be an overload on young adults already trying to adjust to college life. He said that failing to respond to a survey would not reveal a student's attitude toward athletics participation any more than failing to vote might demonstrate a citizen's opposition to issuing school bonds.

"It would be like coding everybody in your community that didn't vote as a no vote," he said. "That's just not the way we do it."

No public discourse

Leland said the new clarification will not change the way Stanford approaches Title IX. He said Stanford currently charters a commission every few years to study equal opportunity, and the institution bases its gender-equity decisions on that study.

While Stanford won't use the sample survey, Leland said he believes others will. He said that might be a positive change.

"There might be some places where it's a positive," he said. "American higher education is so diverse and there are so many different kinds of schools that maybe somebody will use this as a positive."

Leland said his biggest issue with what he believes to be a major policy change is that it was done without the benefit of public discourse. He said a unanimous recommendations of the Commission on Opportunities in Athletics was that any changes be made only after the public has had an opportunity to comment on them.

"I am really disappointed with the process," he said. "One of the strongest recommendations that was adopted by the then-Secretary of Education (Rod) Paige was that any changes in the administrative regulations would be subject to open community and public debate," he said. "There would be an open process, and this certainly hasn't been an open process."

Another commission member, Debbie Yow, athletics director at the University of Maryland, College Park, declined to comment on the clarification.

Aspey said the clarification was not a change and that the "Dear Colleague" letter and model survey required no public input because OCR routinely issues such guidance.

"We do that regularly, and we don't do a press release or an event every time a decision is made here," she said. "It's not required by schools to do (a survey), and it's not necessary to go through a whole process of comment."

Femovich, however, said the clarification is a significant policy modification.

"To come out with a clarification that I think is a substantial change -- much as they say it's not -- to prong three is disappointing. It's disappointing that it was written and published without any public comment," she said, adding that she hoped Patriot League institutions would not change their approach to Title IX compliance because of the clarification.

"I think our institutions are committed and active, but I think with anything in life, we all need to feel a sense of not only doing the right thing based on principle, but also it's always helpful to feel as though there's some real enforcement behind regulations," she said. "I'd like to think that none of the institutions operate because of fear of enforcement, but rather because in principle they believe it's the right thing to provide equal opportunity for women."

Shouldn't have to rally support

Grant said she also hoped that institutions will not look at the survey as a way to evade their gender-equity responsibilities. She said that statistics from three major Division I conferences indicate that they are dedicated to equal treatment because their undergraduate male-female population is within five percentage points of their male-female athletics participation.

"It seems to me that's what the institutions that are really committed to equal opportunity will continue to do," 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 the good universities will listen. They will continue their progress toward equal opportunity."

Grant said a groundswell from the public, brought about by aggressive education from Title IX advocates, prevented the 2003 Commission on Opportunities in Athletics from making any substantial changes to Title IX interpretation. She does not know if the recent clarification will trigger a similar response.

"It takes so much time and effort. We shouldn't have to (rally support)," Grant said. "That's the thing -- we shouldn't have to. Women shouldn't have been put through this for 33 years."

Supporters of the status quo are considering a legal challenge to the clarification and survey. Neena Chaudhry, senior counsel at the National Women's Law Center, said that the new survey and clarification are "contrary to existing law" and that officials at the Center are "considering all of our options" in pursuing the matter. In a statement issued soon after the issuance of the clarification, the Center called the survey "inherently flawed" because it does not require schools to consider factors such as the opinions of coaches and administrators or the levels of participation in athletics in nearby high schools or recreational leagues.

Marcia Greenberger, co-president of the Center, said the survey was "an underhanded way to weaken Title IX and make it easy for schools that aren't interested in providing equal opportunity for women to skirt the law."

Conversely, Pearson of the College Sports Council and Mike Moyer, executive director of the National Wrestling Coaches Association, counted the clarification as a victory in their fight against proportionality, which they argue has caused insti-
tutions to eliminate men's sports such as

wrestling, track and field, and swimming instead of adding sports for women that interest them.

"The current interpretation (of Title IX), particularly the proportionality part, also discriminates against women," Moyer said. "When schools do add a new women's sport, they typically pick a sport simply because of the size of its roster rather than a sport that actually has interest (among students) on its campus."

Pearson said he hopes the clarification will help return Title IX to its original intent -- preventing discrimination on the basis of gender.

"Right now so much of how Title IX has impacted universities is about limiting the men's side rather than growing the women's side," he said. "People have said all along --the anti-reformers have said, 'What's the problem? There are three ways to comply (with Title IX).' And now (the OCR has) clarified one of the three ways to comply and (those who support the status quo) don't seem to like that."

To this point, the courts have almost uniformly deferred to the OCR policy interpretation.

Kim Yuracko, a law professor at Northwestern University, said that the new clarification might affect how some judges rule on future Title IX cases, but she said the lack of an open process might cause them to give less weight to the change.

"When courts are deciding what levels of deference to give, there are constitutional standards, and the degree of deference you give depends in part on the process that was followed in passing it," she said. "Some courts may adopt it if they find it helpful."

The trend toward more conservative judicial appointments over the last two decades probably will not be a factor in how future cases are decided, Yuracko said.

"The biggest advocates these days for gender equity under Title IX, for keeping proportionality, are men with daughters," she said. "I'm not sure it's a Democrat-Republican thing. There's no reason for me to believe that systematically Republican men care less about their daughters being able to play sports."