National Collegiate Athletic Association
NCAA News Archive - 2005
« back to 2005 | Back to NCAA News Archive Index
Gender-equity Q&A
|
The Gender-Equity Q&A is intended to help athletics administrators understand institutional gender-equity and Title IX-related issues. Answers for the Q&A are provided by Christine Grant, associate professor at the University of Iowa, and Janet Judge, attorney with Verrill & Dana LLP.
Q On March 17, the Department of Education issued an “Additional Clarification of Intercollegiate Athletics Policy: Three-Part Test -- Part Three.” What does this clarification change, if anything?
A The clarification provides schools with those specific factors the OCR will consider when determining whether an institution is in compliance with prong three of Title IX’s three-part test. Under the three-part test, a school is presumed to provide nondiscriminatory participation opportunities to its student-athletes if it satisfies any one of the following:
(b) sufficient ability to sustain an intercollegiate team in the sport(s); and
(c) reasonable expectation of intercollegiate competition for a team in the sport(s) within the school's normal competitive region.”
It is unclear whether it would be adopted by courts considering the issue. If so, the burden allocation would be consistent with the Cohen v. Brown decision (“. . .the district court erred in placing upon Brown the burden of proof under prong three of the three-part test . . .”) and inconsistent with the court’s decision in Barrett v. West Chester (“Plaintiffs have the burden of proving that the school has failed to meet the first prong. If successful, the burden then shifts to the [school] who bear[s] the burden under the second and third prongs.”).
Although the allocation of such a burden may appear to be an insignificant issue, the party that bears the burden of proof faces a significant evidentiary challenge.
n Implicit in the burden analysis contained in the clarification, as discussed above, the OCR assumes that schools will continue to fulfill their obligations under the law to have a Title IX officer and a grievance procedure in place. In short, students still need to know who the institution’s Title IX officer is and how to go about seeking compliance with the law. Moreover, the 1996 clarification provided that schools should have effective policies in place for the elevation or addition of teams. These procedures still are an important way for schools to determine interest (or the lack thereof) and should not be ignored. They also help schools show compliance with the second part of the test — history and continuing practice of expansion of opportunity for the under-represented sex.
In short, the clarification provides new and, as is often the case when it comes to Title IX, controversial guidance with regard to a complicated portion of the three-part test. The Department of Education states that the new guidance is consistent with its past practice.
Those who criticize the new policy argue that it deviates drastically from past guidance and practice and, further, that it will reinforce and in some instances exacerbate existing disparities. It will, they argue, no longer require schools to consider the interests and abilities of potential students in assessing the interest that may already exist on campus or would exist if schools recruited students to participate in a sport not currently offered but popular among potential students in the institutions normal recruiting area. Talented athletes — male and female — self-select. They go where their interests and abilities — both academic and athletics — will be accommodated. Their interest in attending and playing does not become a factor unless they decide to go where their sport does not already exist.
The OCR investigators are bound to follow the clarification when conducting investigations. In light of the controversy, it appears that this guidance will also be tested in court sometime in the not so distant future. At that time, courts will determine if it is a reasonable interpretation of the law whether it is arbitrary and capricious and thus not to be afforded deference.
For additional gender-equity resources, including newly created video segments featuring Christine Grant and Janet Judge, visit www.ncaa.org/gender_equity.
Q On March 17, the Department of Education issued an “Additional Clarification of Intercollegiate Athletics Policy: Three-Part Test -- Part Three.” What does this clarification change, if anything?
A The clarification provides schools with those specific factors the OCR will consider when determining whether an institution is in compliance with prong three of Title IX’s three-part test. Under the three-part test, a school is presumed to provide nondiscriminatory participation opportunities to its student-athletes if it satisfies any one of the following:
- The percentage of male and female athletes is substantially proportionate to the percentage of male and female students enrolled at the school; or
- The school has a history and continuing practice of expanding participation opportunities for the under-represented sex; or
- The school is fully and effectively accommodating the interests and abilities of the under-represented sex.
- The clarification changes and in some instances narrows the scope of inquiry an institution must make to satisfy its obligation to assess the potential interest of the under-represented sex. The following are some important issues raised by the new guidance:
- To assess interest sufficient to sustain a varsity team, an institution may now rely on a Web-based survey, provided in the user’s guide attached to the clarification. According to the clarification, the presumption of compliance raised by a “properly administered” survey showing insufficient interest to support an additional varsity team for the under-represented sex “can be overcome only if the OCR finds direct and persuasive evidence of unmet interest sufficient to sustain a varsity team, such as the recent elimination of a viable team for the under-represented sex or a recent, broad-based petition from an existing club team for elevation to varsity status.”
- The clarification allows non-responses by students to the survey to be counted as an actual lack of interest. The clarification provides that either students should be required to actively bypass the survey to register for classes or where it is sent out by e-mail to the population, a school must take “reasonable steps” to follow up with those who do not respond.
- The clarification states that while institutions may use other methods other than the survey to assess interest, the OCR will not presume that the other methods standing alone are adequate to measure student interest under part three. Only then will the OCR look to the “broader range of factors drawn from previous OCR guidance on the three-part test.”
- The clarification provides that schools may determine interest simply by distributing an e-mail survey to all current and admitted students and tabulating the responses, or as the case may be, the non-responses. However, the new guidance also recognizes that where surveys show full and effective accommodation, existing interest still may be demonstrated by club-team requests to become varsity or the recent demotion or elimination of a viable intercollegiate team.
- Survey response rates — a critical issue in Barrett v. West Chester, a recent decision from the federal eastern district of Pennsylvania — no longer need to be at a certain level to validate the survey. Rather, the clarification states that a student’s failure to respond to the e-mail survey may be counted as a “no interest” response. In Barrett, the district court held that a 39 percent survey response rate was too low to validate the survey and therefore the school could not rely on the results to demonstrate compliance with prong three.
- According to the clarification, schools no longer need to take into consideration additional indicia of interest when assessing full and effective accommodation. This guidance is in contrast to the 1990 version of the Title IX Athletics Investigator’s Manual, the agency’s internal roadmap for OCR investigators that instructs investigators to consider, among other things, institutional surveys or assessments of students’ athletics interests and abilities; the “expressed interests” of the under-represented gender; as well as other programs indicative of interests and abilities, such as club and intramural sports, sports programs at “feeder” schools, community and regional sports programs, and physical education classes. This was reaffirmed in the 1996 clarification, which in turn was supported by the Department of Education in July 2003. Although the 1996 policy interpretation does not require an institution to accommodate the interests and abilities of potential students, it does note that an institution needs to consider the interests of potential students through, for example, looking at feeder schools and recreational leagues
- The clarification states that “part three imposes no obligation on an institution to generate interest among its students of the under-represented sex.” This clearly is at odds with the 1996 clarification stating that “Under the policy interpretation, the institution may also be required to actively encourage the development of intercollegiate competition for a sport for members of the under-represented sex when overall athletics opportunities within its competitive region have been historically limited for members of that sex.”
- The clarification also places a high burden on those who seek additional participation opportunities. It states that the OCR (in an OCR investigation) or students (in an on-campus Title IX grievance investigation) bear the burden of proof with regard to part three of the test. In other words, under the clarification, schools that rely upon the third prong for compliance need not affirmatively demonstrate such compliance unless and until there is “actual evidence” of unmet interests and abilities among the under-represented sex. More specifically, the guidance states that the OCR will find an institution to be in compliance with the participation portion of the law “unless there exists a sport(s) for the under-represented sex for which all three of the following conditions are met:
(b) sufficient ability to sustain an intercollegiate team in the sport(s); and
(c) reasonable expectation of intercollegiate competition for a team in the sport(s) within the school's normal competitive region.”
It is unclear whether it would be adopted by courts considering the issue. If so, the burden allocation would be consistent with the Cohen v. Brown decision (“. . .the district court erred in placing upon Brown the burden of proof under prong three of the three-part test . . .”) and inconsistent with the court’s decision in Barrett v. West Chester (“Plaintiffs have the burden of proving that the school has failed to meet the first prong. If successful, the burden then shifts to the [school] who bear[s] the burden under the second and third prongs.”).
Although the allocation of such a burden may appear to be an insignificant issue, the party that bears the burden of proof faces a significant evidentiary challenge.
n Implicit in the burden analysis contained in the clarification, as discussed above, the OCR assumes that schools will continue to fulfill their obligations under the law to have a Title IX officer and a grievance procedure in place. In short, students still need to know who the institution’s Title IX officer is and how to go about seeking compliance with the law. Moreover, the 1996 clarification provided that schools should have effective policies in place for the elevation or addition of teams. These procedures still are an important way for schools to determine interest (or the lack thereof) and should not be ignored. They also help schools show compliance with the second part of the test — history and continuing practice of expansion of opportunity for the under-represented sex.
In short, the clarification provides new and, as is often the case when it comes to Title IX, controversial guidance with regard to a complicated portion of the three-part test. The Department of Education states that the new guidance is consistent with its past practice.
Those who criticize the new policy argue that it deviates drastically from past guidance and practice and, further, that it will reinforce and in some instances exacerbate existing disparities. It will, they argue, no longer require schools to consider the interests and abilities of potential students in assessing the interest that may already exist on campus or would exist if schools recruited students to participate in a sport not currently offered but popular among potential students in the institutions normal recruiting area. Talented athletes — male and female — self-select. They go where their interests and abilities — both academic and athletics — will be accommodated. Their interest in attending and playing does not become a factor unless they decide to go where their sport does not already exist.
The OCR investigators are bound to follow the clarification when conducting investigations. In light of the controversy, it appears that this guidance will also be tested in court sometime in the not so distant future. At that time, courts will determine if it is a reasonable interpretation of the law whether it is arbitrary and capricious and thus not to be afforded deference.
For additional gender-equity resources, including newly created video segments featuring Christine Grant and Janet Judge, visit www.ncaa.org/gender_equity.
© 2010 The National Collegiate Athletic Association
Terms and Conditions | Privacy Policy