I am responding to the comment piece from Northwestern University head women’s fencing coach Laurence D. Schiller in the January 16 issue of The NCAA News (“Proportionality sabotages equity effort”).

How sad that the misperception that Title IX requires proportionality persists despite the facts. Proportionality has never been “virtually the sole measure of compliance” as coach Schiller believes, nor has it ever been the emphasis of the Office for Civil Rights.

However, Coach Schiller is not to blame for sharing this widely held misperception regarding Title IX. Certain members of Congress, most notably Speaker of the House Dennis Hastert, in a May 1995 hearing; ABC television’s “20/20” in 1998; CBS’s “60 Minutes” in 2002; and those behind the creation of the U.S. Department of Education’s 2002 Commission on Opportunity in Athletics shared this misperception. In the case of the two network news programs, they broadcast this falsehood to millions of Americans. Moreover, plaintiffs time and again made the same claim in federal courts, and they have lost every case.

Long-time OCR headquarters staff have known for many years that institutions have complied with the participation opportunities requirements of Title IX (the three-part test) despite, in some cases, men’s and women’s athletics participation rates that were not even close to their respective enrollment rates. In 1996 and 2000, the Government Accountability Office published reports showing that more than 70 percent of the time, institutions investigated by the OCR choose methods of compliance other than proportionality.

On March 17, 2005, the OCR issued a policy clarification on test three (full accommodation) of the three-part test. In that document, the OCR confirms the GAO’s findings and acknowledges that, of the institutions that the OCR investigated from 1992 through 2002 under the three-part test, “about two-thirds came into compliance with part three of the test.”

Institution officials may choose which one of the three tests they will meet for compliance. Test three (full accommodation) requires that every team be offered for the under-represented sex (which is nearly always women) for which there is sufficient interest and ability for a team and sufficient competition in the institution’s normal competitive region. Often, it is lack of available competition that limits an institution’s obligation to consider adding a sport for women. At some institutions, it is possible to meet test three even when women’s enrollment may be 55 percent and women’s participation is only 35 percent.

The OCR’s March 17, 2005, policy clarification does more than recognize that most institutions choose test three for compliance. That document also allows institutions to claim compliance with test three based on non-response to the OCR’s newly created model survey, which institution officials may use at their discretion and administer by e-mail. However, institution officials may wish to think twice before ending up in federal court claiming that women are not interested in sports and that the institution complies with federal law because women did not respond to an e-mail survey.     

Valerie M. Bonnette, President

Good Sports, Inc., Title IX and

Gender Equity Specialists