Education Department Nixes Bush-Era Policy on Title IX Compliance

April 20, 2010

The U.S. Department of Education has withdrawn a controversial 2005 policy that allows colleges to comply with a key federal gender-equity law by using electronic surveys to gauge female students' interest in playing sports.

The reversal marks a victory for advocates of gender equity in sports who viewed the policy as a damaging loophole to Title IX of the Education Amendments of 1972, which prohibits sex discrimination at institutions that receive federal funds.

The change in policy, set forth in a "Dear Colleague" letter from the department's Office for Civil Rights, will be formally announced on Tuesday by Vice President Joseph R. Biden Jr., Education Secretary Arne Duncan, and other top officials.

In the letter, the civil-rights office states that survey results alone are not sufficient evidence of a lack of student interest in sports. It also provides recommendations for ways in which colleges can use surveys as one of many indicators to assess the athletic interests of students, particularly women.

"Making Title IX as strong as possible is a no-brainer," said Mr. Biden in a written statement. He added that the change in policy would "better ensure equal opportunity in athletics" and allow women to "realize their potential."

Mr. Duncan said the change in policy would give colleges flexibility and control over their athletics programs. In addition, he said in the written statement, "the letter responds to concerns and widespread objections that the 2005 policy and the prototype survey issued by the department were inappropriate for assessing compliance with Title IX."

Interest-Survey Alternative

For decades, the department has used a three-part test to determine whether colleges are in compliance with Title IX. Under that test, a college must meet one of three requirements: have the proportion of female athletes be the same as the proportion of female students; have a history and continued practice of expanding athletics programs for women; or demonstrate that the women's athletic program fully and effectively accommodates the interest of current and prospective female students.

The 2005 policy dealt with the third element of this test. For decades, previous interpretations had allowed for multiple indicators to gauge students'—particularly female students'—interest in certain sports.

The 2005 clarification changed that, shifting the burden of proof from the colleges to the students: It permitted colleges to rely solely on the results of periodic surveys sent to their undergraduates to assess interest.

Supporters of the policy said it would be a fair way of achieving gender equity: If women wanted to play a certain sport, they could say as much in a survey. Opponents said it was an inconsistent mechanism that would allow colleges to manipulate survey responses and avoid offering women's teams. In the long run, the rift made little difference, as the policy failed to gain traction on most campuses and never earned the endorsement of the National Collegiate Athletic Association.

Judith M. Sweet, who testified in 2007 before the U.S. Commission on Civil Rights against the survey policy, called Tuesday's announcement "long overdue, wonderful news," and "an important step in maintaining the original intent of Title IX." (The commission, an independent federal advisory panel, released a report this month based on the 2007 hearings; the report lauded the survey option as the best way for gauging female students' interest in sports.)

The survey mechanism, said Ms. Sweet, a consultant and a former president of the NCAA, was a "quick fix" that deviated from exploring female students' interest in sports in a meaningful way. "We've been optimistic from the beginning that it would be overturned," she said, "but it's been a long haul."

'A Symbolic Step'

Title IX makes no explicit mention of athletics, but the law is best known for its application to high-school and college sports: Since the 1970s, the rosters of the nation's college sports teams have swelled with women, growing from about 16,000 not long before the law was passed to more than 180,000 this year.

Despite the growth, the law has had a tumultuous past, marked by emotional political debates, seesawing court decisions, and inconsistent government oversight.

The 2005 policy was a particularly sharp thorn in the side of gender-equity advocates, who said it weakened a law already poorly enforced by education officials under President George W. Bush's administration.

This week, those advocates said Mr. Duncan's announcement has returned Title IX to its proper place as the arbiter of equal opportunity in college sports.

"This is an important step in maintaining the original intent of Title IX," said Ms. Sweet, who was a longtime athletic director at the University of California at San Diego. "We've waited a long time for somebody to step up and acknowledge that it was an inappropriate action to take in 2005, and that we need to make sure that institutions are clear on utilizing various methods to assess interest" in sports. But Eric Pearson, chairman of the College Sports Council, an advocacy group for men's sports, said the reversal of the 2005 policy was "disappointing" and a blow to giving students more of a voice in colleges' decisions about which sports to sponsor.

"We see this as a setback," he said in an interview. "We were confident that schools could actually use the ... test and be confident that it could hold up in court."

Education officials have already stated that they will be more proactive in enforcing Title IX as it applies to athletics. Today's announcement gave advocates in the Title IX world their first glimpse of what may lie ahead.

Jeffrey H. Orleans, a lawyer and former executive director of the Council of Ivy Group Presidents who helped to write the regulations for Title IX in the 1970s, said the withdrawal of the policy was "a symbolic step" by the Obama administration to signal that it is serious about Title IX.

Colleges would be better off focusing on proportionality from the outset, he added, rather than relying on inconsistent surveys.

"If you have a survey and it tells you you're OK for a year, next year's survey may not tell you that," he said. "So why not get to work and do the right thing?"