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Business and Policy Areas
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Guidance Issued on Title IX Interest Test for Intercollegiate Athletics

March 23, 2005

Colleges and universities may find it easier to show that they are in compliance with federal rules requiring equal opportunities for women in intercollegiate athletics under new guidance released March 17. The Office of Civil Rights (OCR) at the U. S. Department of Education has issued a Dear Colleague letter that clarifies its policy on enforcing Title IX of the Education Amendments of 1972, which prohibits discrimination on the basis of sex in education programs for intercollegiate athletics. Along with the policy guidance, OCR provides institutions with a guide to using student interest surveys for Title IX.

Under policy guidance originally issued by OCR in 1979, a three-part test was outlined that OCR uses to determine whether an institution's athletic program is adequately accommodating student athletes of both sexes. An institution needs to meet only one part of the test to be considered in compliance with Title IX:

  1. the percent of male and female athletes is substantially proportionate to the percent of male and female students enrolled at the school; or
  2. the school has a history and continuing practice of expanding participation opportunities for the underrepresented sex; or
  3. the school is fully and effectively accommodating the interests and abilities of the underrepresented sex.

The new guidance expands on the third part of the test and, significantly, places the burden of proof on OCR, or students if a complaint is filed, to show that a college or university is not in compliance. Under part three, an institution will be in compliance unless there is one or more sports for which all  of the following conditions are met:

  1. unmet interest sufficient to sustain a varsity team;
  2. sufficient ability to sustain a team; and
  3. reasonable expectation of intercollegiate competition in the sport.

OCR notes that many institutions currently use surveys to determine whether student interest in athletic participation is being met. In order to assist institutions, a User's Guide to Developing Student Interest Surveys Under Title IX has been developed by the National Center for Education Statistics. The guide provides a model Web-based survey that institutions can rely on to demonstrate compliance with the part three test.

The NACUBO contact on these issues is Anne Gross, 202.861.2544.