USCCR Endorses Use of Model Survey in Title IX Compliance

Before the week was out, we wanted to make sure we shared some very good news that came courtesy of the U.S. Commission on Civil Rights just before the Easter holiday:

The U.S. Commission on Civil Rights has released a report on accommodation of athletic interests and abilities of college students under Title IX of the Higher Education Amendments Act of 1972, which prohibits discrimination on the basis of sex in any educational program or activity receiving federal funds, including athletics, and is enforced by the Department of Education. The Department’s regulatory test for compliance (widely known as the “three-prong” test) requires: a) substantially proportional representation of men and women in athletic participation (considered a “safe harbor” from prosecution); or b) substantial progress in providing opportunities for the underrepresented sex; or c) adequate accommodation of the interests and abilities of the underrepresented sex in the institution’s athletic offerings (“prong three”).The report is based on a briefing by a balanced panel of experts who debated, among other topics, the efficacy of the model survey guidance provided by the Department of Education in 2005 to help colleges comply with prong three of the test, and the ability of students to express their interests in athletics. The report includes discussions of the rationale for developing the model survey, including the need to provide an objective alternate to prong one, currently considered the only “safe harbor” from prosecution, which some witnesses alleged had resulted in men’s sports being dropped.

The Commission found that the Department’s 2005 model survey provides the best method available for achieving compliance under prong three, that students (including women) are fully capable of expressing their interests, and recommends that schools continue to use the survey to comply with Title IX rather than relying on mechanical compliance with proportional representation. The Commission also recommends that the regulations be revised to explicitly take into account the athletic interests of both sexes rather than just the interests of the underrepresented sex, restoring Title IX to its original goal of providing equal opportunity for individuals of both sexes.

Needless to say, this was very welcome news. Here’s what CSC Chairman Eric Pearson had to say about the report:

“The U.S. Commission on Civil Rights’ recent recommendation to reform Title IX is consistent with the College Sports Council’s (CSC) position that all students, male and female, deserve equal protection under the law. The current regulations governing Title IX sanction discrimination against boys on the basis of their gender. The CSC believes, as does the Civil Rights Commission, that ‘the regulations for Title IX be revised to explicitly take into account the athletic interests of both sexes rather than just the interests of the underrepresented sex.’ It is simply common sense that schools should be permitted to survey all their students in order to determine student interests.”

To read more about the report, click here for a story from USA Today:

The U.S. Commission on Civil Rights released a series of recommendations on Title IX policy Thursday aimed at what it called an “unnecessary reduction of men’s athletic opportunities.”

The commission recommended that schools use a model survey offered by the Department of Education in 2005, calling it “the best possible method” for measuring women’s interest and abilities. The survey is one of three ways schools can meet the participation requirements of Title IX, the law that bans sex discrimination at schools receiving federal funds.

That model survey was blasted by women’s groups when it was introduced. The NCAA asked member schools not to use it. Few have. Daniel Cohen, an attorney who was a panelist before the commission, said he knows of several schools that have used it, though he declined to name them.

“The commission concluded that a properly administered model survey with a high response rate can potentially help schools improve their Title IX compliance and may provide an objective alternative to proportionality for some schools,” Cohen said.

 

Look for more on this issue from the CSC in the coming weeks.