This is the second installment of Gender-Equity Q&A, a new feature regarding gender equity and the effects of Title IX on intercollegiate athletics. This feature will appear in the membership information section in subsequent issues of The NCAA News to help athletics administrators understand institutional gender-equity and Title IX-related issues. The first Gender-Equity Q&A appeared in the November 22, 2004, issue of The NCAA News.

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 What specific evidence would an institution have to present to satisfy Prong 2 of the three-prong test? What is acceptable evidence that an institution is "fully and effectively" accommodating interests of students (Prong 3)?

A To satisfy the second prong of Title IX, an institution needs to provide evidence of its past and continuing practice of expanding participation opportunities for the under-represented sex. When an institution is assessing whether it has been historically responsive to the developing interests and abilities of women, some of the factors to consider include:

• The record of upgrading teams from club or intramural status.

• The record of adding teams.

• The increase in the number of participants (that is, on current teams).

• The number of positive responses to requests to add teams or upgrade.

Factors to be considered when evaluating whether there is a continuing practice of program expansion include:

• Clear policies for requesting the addition or upgrade of a sport.

• Effective dissemination of these policies to appropriate groups (for example, club sports, intramural teams).

• Up-to-date implementation of a plan of program expansion.

• Efforts to gauge the developing interests and abilities through regular assessments of enrolled and incoming female students.

• Timely actions taken based on the results of the assessments.

It is unlikely that an institution would be found in compliance with Prong 2 by only reducing the participation opportunities for the over-represented sex. Nor would it be in compliance by promising the addition of a sport sometime in the future.

Prong 3 tests whether the institution is fully and effectively accommodating the interests and abilities of the under-represented sex. The women whose interests and abilities are being assessed include currently enrolled female students and women who have been admitted but are not yet enrolled.

It is quite possible that an imbalance of participation opportunities exists (compared to enrollment figures) on a given campus, but that the imbalance may not reflect discrimination. In this instance, an institution must provide evidence that women's interests and abilities are truly being fully and effectively accommodated.

The responses to three questions will determine whether the institution is in compliance with Prong 3:

1. Is there sufficient unmet interest to support an intercollegiate team?

Factors to be considered include the following:

• Requests to add or upgrade a team.

• Results of questionnaires to determine interests.

• Previous participation in interscholastic sports by women already admitted to the institution.

• Participation in amateur athletics sports or community leagues.

Questionnaires need not be elaborate or time-consuming, but they should be given periodically and the results dealt with in a fair and timely fashion. An open forum also may be used for potentially interested students.

2. Is there sufficient ability to sustain an intercollegiate team?

Factors that would be considered to provide indications of ability include:

• Past experiences of individuals in interscholastic, club or intramural sports.

• Past experiences of club or intramural teams.

(A poor competitive record or inability to play at the same competitive level as other current varsity teams is not enough to deny an expansion of opportunities for the under-represented sex. It is sufficient to determine that interested students have the ability to sustain an intercollegiate team.)

3. Is there a reasonable expectation of competition for the team?

Generally, an evaluation will look at the competitive opportunities in the geographic area in which the current varsity teams compete (for example, the offerings at institutions in a conference and the offerings in institutions in the area in which the varsity teams generally compete).

The interest at a specific university could be considered met when surveys indicate no interest to add or upgrade a sport to varsity status. Surveys should be conducted for the enrolled female student body, and especially among female club sport participants and intramural participants. The OCR also would expect surveys to include women already admitted to the university, but as yet not enrolled. If no individuals or no teams file the appropriate request to elevate or add a sport, and there is no other interest based on survey results, the interests are said to have been fully and effectively accommodated by the current varsity program.

It is a common misconception that ultimately an institution must be in compliance with Prong 1 (that is, when the athletics population ratio is similar to the undergraduate population). This is incorrect. It is true that an institution may be in compliance with Prong 2 (history and continuing practice of program expansion) and eventually become in compliance with Prong 1. However, this is not inevitable.

It is possible for an institution to be in compliance with Prong 2 but then find that, despite an imbalance of participation opportunities, there are no unmet interests and abilities in the female population. In this instance, the institution would then be in compliance with Prong 3. Providing that regular assessments continue to confirm this fact, that institution would remain in compliance with Prong 3.

For additional gender-equity resources, including newly created video segments featuring Christine Grant and Janet Judge, visit www.
ncaa.org/gender_equity.