A recently released clarification by the U.S. Department of Education’s Office of Civil Rights makes it easier for college and universities to comply with Title IX regulations regarding athletics.
The March 17 clarification, signed by Assistant Secretary for Civil Rights James F. Manning, specifically deals with the “fully and effectively” test, the third of three prongs to determine if a school is in compliance with the 1972 regulation that bans discrimination on the basis of sex from institutions that receive federal funding. The clarification was published on the Office of Civil Right’s Web site.
By definition, the “full and effectively” test judges to see if a school is “accommodating the athletic interests and abilities of its students who are underrepresented in its current varsity athletic program offerings,” Manning wrote.
Other prongs look to see if a school has a history and continued practice of providing athletic opportunities for women and a proportionality requirement, which states that the ration among male and female athletes must be similar to the ratio of male and female students.
A school only has to be in compliance with one of the three tests for the Office of Civil Rights to consider that the institution is providing “nondiscriminatory” athletic opportunities to the undergraduate population.
Title IX regulations have been used to increase the number of women’s sports on college campuses across the country. However, opponents claim the administration of Title IX regulations are to blame for colleges discontinuing several programs, including wrestling and track and field. The fully and effectively test has long been considered the hardest of the three prongs for schools to comply with.
According to Manning’s clarification, school administrators would only have to survey its population to determine if there is interest in the creation of a sport for the underrepresented gender. A school would be considered in compliance with the new guidelines unless there is unmet interest sufficient to sustain a varsity team, a sufficient ability to sustain an intercollegiate team in the sport, and there is a reasonable expectation of intercollegiate competition for a team in the sport within the school¹s normal competitive region.
The burden of proof to determine if a school is not in compliance would fall on the Office of Civil Rights through its investigation or on individual students through school-based Title IX complaints.
A presumption of compliance would exist if survey results show an insufficient level of interest to support an additional varsity team for women, according to the letter.
“The presumption of compliance can only be overcome if OCR finds direct and very persuasive evidence of unmet interest sufficient to sustain a varsity team, such as the recent elimination of a viable team for the underrepresented sex or a recent, broad-based petition from an existing club team for elevation to varsity status,” Manning wrote. “Where the Model Survey shows insufficient interest to field a varsity team, OCR will not exercise its discretion to conduct a compliance review of that institution¹s implementation of the three-part test.”
Manning said schools were already using student surveys to determine if it is meeting the athletic needs of underrepresented sexes. When results show that there is insufficient support for the creation of a sport, the school would be considered in compliance. The survey would be sent to all undergraduate students or to all students of the underrepresented sex, Manning said. Along with the clarification, the Office of Civil Rights gave college officials information regarding a survey and how to administer it on campus through a “User Guide and Technical Manual.”
”Where the Model Survey shows insufficient interest to field a varsity team, OCR will not exercise its discretion to conduct a compliance review of that institution’s implementation of the three-part test,” Manning said.
While the clarification centers on the third prong of the three-part test, Manning writes that schools should not overlook the importance of the other two prongs when attempting to be in compliance of Title IX regulations.
”Despite the focus on part three, OCR strongly reiterates that each part of the three-part test is an equally sufficient and separate method of complying with the Title IX regulatory requirement to provide nondiscriminatory athletic participation opportunities,” Manning wrote. “In essence, each part of the three-part test is a safe harbor.”
According to NCAA statistics, in the past 15 years cross country programs have seen the majority of cuts by schools wanting to be compliant with Title IX regulations. A total of 183 programs have been cut in the time. Indoor track, golf, tennis, rowing, outdoor track, swimming and wrestling have also seen significant cuts in the number of men¹s programs due to Title IX regulations.
Shannon Blosser is a staff writer with the John W. Pope Center for Higher Education Policy.
