Dear Colleague:
It is my pleasure to send you the enclosed material regarding an issue which continues to be of interest to all of us--equal opportunities in intercollegiate athletics.
As you know, the Office for Civil Rights (OCR) enforces Title IX of the Education Amendments of 1972, 20 U.S.C. ¤ 1681 et seq. (Title IX), which prohibits discrimination on the basis of sex in education programs and activities. The regulation implementing Title IX, at 34 C.F.R. Part 106, effective July 21, 1975, and the Intercollegiate Athletics Policy Interpretation, issued December 11, 1979 (44 Fed. Reg. 71413 et seq. (1979)), followed publication for notice and the receipt and review of extensive comments.
Since becoming Assistant Secretary in May 1993, I have convened four focus groups to obtain a broad spectrum of views regarding OCR's Title IX enforcement and its guidance on intercollegiate athletics. As I testified before Congress on May 9, 1995, there is widespread, bipartisan support for the goals of Title IX in the area of intercollegiate athletics. At the same time, I have concluded that clarification of existing standards relating to the obligations of colleges and universities in this area is in order.
To ensure that there is no confusion about the enclosed "Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Test" ["the Clarification"], I would like to outline several important points about this document.
First. the objective of the Clarification is to respond to requests for specific guidance about existing standards that have guided the enforcement of Title IX in the area of intercollegiate athletics for over a decade. In preparing the enclosure, OCR is not revisiting the Title IX regulation or the Title IX Policy Interpretation. Rather, the Clarification is provided to you in draft, so that you have the opportunity to comment upon whether it provides the appropriate clarity in areas that have generated questions. I am requesting that all comments be provided to me no later than 30 days from the date of this letter. After a review and assessment of comments received, OCR will issue the Clarification in final.
Second, the Clarification is limited to an elaboration upon what is commonly referred to as the "three-part test" regarding opportunities for students to play on intercollegiate teams. This test, which has generated the majority of questions in the context of Title IX enforcement, is a portion of a larger analytical framework reflected in the 1979 Policy Interpretation. In an effort to be as responsive as possible to the requests for more helpful guidance, we have articulated specific factors that guide an analysis of each part of the three-part test, and we have provided examples to demonstrate in concrete terms how those factors will be considered. We have not provided strict numerical formulas or "cookie cutter" answers to the issues that are inherently case- and fact-specific. Such an effort not only would belie the meaning of Title IX, but would at the same time deprive institutions of the flexibility to which they are entitled when deciding how best to comply with the law.
Third, the Clarification is consistent with OCR and federal court decisions: it confirms that institutions need to comply only with any part of the three-part test to provide nondiscriminatory participation opportunities for individuals of both sexes. The first part of the test--substantial proportionality--focuses on the participation rates of men and women at an institution and affords institutions a "safe harbor" for compliance with Title IX. An institution that does not provide substantially proportional participation opportunities for men and women may comply with Title IX by satisfying part two or part three of the test. The second part--history and continuing practice--is an examination of an institution's good faith expansion of athletic opportunities through its response to developing interests of the underrepresented sex at that institution. The third part--fully and effectively accommodating interests and abilities of the underrepresented sex--centers on the inquiry of whether there are concrete and viable interests among the underrepresented sex that should be accommodated by an institution.
Finally, you will note that nothing in the Clarification requires that an institution cap or eliminate participation opportunities for men. This issue has been the topic of many conversations that I've had with college coaches, administrators, and athletes. The question of how to comply with Title IX and to provide equal athletic opportunities for all students is one of the predominant challenges that institutions face today, especially in the face of increasing budget constraints. OCR is aware of and sensitive to the concerns that have been expressed in this area.
OCR is committed to continuing to work in partnership with colleges and universities to ensure that the promise of Title IX becomes a reality for all students. Thank you for your continuing interest in this subject.
Sincerely,
Norma V. Cantu
Assistant Secretary for Civil Rights
The Title IX regulation provides that if an institution sponsors an athletic program it must provide equal athletic opportunities for members of both sexes. Among other factors, the regulation requires that an institution must effectively accommodate the athletic interests and abilities of students of both sexes to the extent necessary to provide equal athletic opportunity.
The 1979 Policy Interpretation provides that as part of this determination OCR will apply the following three-part test to assess whether an institution is providing nondiscriminatory participation opportunities for individuals of both sexes:
The three-part test furnishes three individual avenues for measuring compliance with the requirement to provide individuals of each sex with nondiscriminatory opportunities to participate in intercollegiate athletics. If an institution has met any part of the three-part test, OCR will determine that the institution is meeting this requirement.
It is important to note that under the Policy Interpretation the requirement to provide nondiscriminatory participation opportunities is only one of many factors that OCR examines to determine if an institution is in compliance with the athletics provision of Title IX. OCR also considers the quality of competition offered to members of both sexes in order to determine whether an institution effectively accommodates the interests and abilities of its students.
In addition, when an "overall determination of compliance" is made by OCR, 44 Fed. Reg. 71417, 71418, OCR examines the institution's program as a whole. Thus OCR considers the effective accommodation of interests and abilities in conjunction with equivalence in the availability, quality and kinds of other athletic benefits and opportunities provided male and female athletes to determine whether an institution provides equal athletic opportunity as required by Title IX. These other benefits include coaching, equipment, practice and competitive facilities, recruitment, scheduling of games, and publicity, among others.
OCR's analysis begins with a determination of the number of participation opportunities afforded to male and female athletes in the intercollegiate athletic program. In determining participation opportunities, OCR counts the number of actual athletes participating in the athletic program. The Policy Interpretation defines participants as those athletes:
For purposes of this determination, OCR considers a sport's season to commence on the date of a team's first intercollegiate competitive event and to conclude on the date of the team's final intercollegiate competitive event. As a general rule, all athletes who are listed on a team's squad or eligibility list and are on the team as of the team's first competitive event are counted as participants by OCR. Under part d. of the above definition, any athlete who receives financial aid on the basis of athletic ability is considered by OCR to be a participant. In determining the number of participation opportunities for the purposes of the interests and abilities analysis, an athlete who participates in more than one sport will be counted as a participant in each sport in which he or she participates.
The Title IX regulation allows institutions to operate separate athletic programs for men and women. Accordingly, the regulation allows an institution to control the respective number of participation opportunities offered to men and women. Thus, it could be argued that to satisfy part one there should be no difference between the participation rate in an institution's intercollegiate athletic program and its full- time undergraduate student enrollment. However, because in some circumstances it may be unreasonable to expect an institution to achieve exact proportionality -- for instance, because of natural fluctuations in enrollment and participation rates or because it would be unreasonable to expect an institution to add athletic opportunities in light of the small number of students that would have to be accommodated to achieve exact proportionality -- the Policy Interpretation examines whether participation opportunities are "substantially" proportionate to enrollment rates. OCR makes this determination on a case-by-case basis.
For example, if an institution's enrollment is 52 percent male and 48 percent female and 52 percent of the participants in the athletic program are male and 48 percent female, then the institution would clearly satisfy part one. However, OCR recognizes that natural fluctuations in an institution's enrollment and/or participation rates may affect the percentages in a subsequent year. For instance, if the institution's admissions the following year resulted in an enrollment rate of 51 percent males and 49 percent females, while the participation rates of males and females in the athletic program remained constant, the institution would continue to satisfy part one because it would be unreasonable to expect the institution to fine tune its program in response to this unexpected change in enrollment.
As another example, over the past five years an institution has had a consistent enrollment rate for women of 50 percent. During this time period, it has been expanding its program for women in order to reach proportionality. In the year that the institution reaches its goal, i.e., 50 percent of the participants in its athletic program are female, its enrollment rate for women increases to 52 percent. Under these circumstances, the institution would satisfy part one.
OCR would also consider opportunities to be substantially proportionate when the number of opportunities that would be required to achieve proportionality would not be sufficient to sustain a viable team, i.e., a team for which there is a sufficient number of interested and able students and enough available competition to sustain an intercollegiate team. As a frame of reference in assessing this situation, OCR may consider the average size of teams offered for the underrepresented sex, a number which would vary by institution.
*Part two focuses on whether an institution has expanded the number of intercollegiate participation opportunities provided to the underrepresented sex. Improvements in the quality of competition, and of other athletic benefits, provided to women athletes, while not considered under the three-part test, can be considered by OCR in making an overall determination of compliance with the athletics provision of Title IX.OCR will review the entire history of the athletic program, focusing on the participation opportunities provided for the underrepresented sex. First, OCR will assess whether past actions of the institution have expanded participation opportunities for the underrepresented sex in a manner that was demonstrably responsive to their developing interests and abilities. There are no fixed intervals of time within which an institution must have added participation opportunities; rather, the focus is on whether the program expansion was responsive to developing interests and abilities of the underrepresented sex. In addition, the institution must demonstrate a continuing (i.e., present) practice of program expansion as warranted by developing interests and abilities.
OCR will consider the following factors, among others, as evidence that may indicate a history of program expansion that is demonstrably responsive to the developing interests and abilities of the underrepresented sex:
In the event that an institution eliminated any team for the underrepresented sex, OCR would evaluate the circumstances surrounding this action in assessing whether the institution could satisfy part two of the test. However, OCR will not find a history and continuing practice of program expansion where an institution increases the proportional participation opportunities for the underrepresented sex by reducing opportunities for the over represented sex alone or by reducing participation opportunities for the over represented sex to a proportionately greater degree than for the underrepresented sex. This is because part two considers an institution's good faith remedial efforts through actual program expansion. It is only necessary to examine part two if one sex is over represented in the athletic program.
Cuts in the program for the underrepresented sex, even when coupled with cuts in the program for the over represented sex, cannot be considered remedial because they burden members of the sex already disadvantaged by the present program. However., an institution that has eliminated some participation opportunities for the underrepresented sex can still meet part two if, overall, it can show a history and continuing practice of program expansion.
In addition, OCR will not find that an institution satisfies part two where it established teams for the underrepresented sex only at the initiation of its program for the underrepresented sex or where it merely promises to expand its program for the underrepresented sex at some time in the future.
The following examples are intended to illustrate the principles discussed above.
At the inception of its women's program in the mid-1970s, Institution A established seven teams for women. In 1984 it added a women's varsity team at the request of students and coaches. In 1990 it upgraded a women's club sport to varsity team status based on a request by the club members and an NCAA survey that showed a significant increase in girls high school participation in that sport. Institution A is currently implementing a plan to add a varsity women's team in the spring of 1996 that has been identified by a regional study as an emerging women's sport in the region. Based on the addition of these teams, the percentage of women participating in varsity athletics at the institution has increased. OCR would find Institution A in compliance with part two because it has a history of program expansion and is continuing to expand its program for women to meet their developing interests and abilities.
By 1980, Institution B established seven teams for women. Institution B added a women's varsity team in 1983 based on the requests of students and coaches. In 1991 it added a women's varsity team after an NCAA survey showed a significant increase in girls' high school participation in that sport. In 1993 Institution B eliminated a viable women's team and a viable men's team in an effort to reduce its athletic budget. It has taken no action relating to the underrepresented sex since 1993. OCR would not find Institution B in compliance with part two. Institution B cannot show a continuing practice of program expansion that is responsive to the developing interests and abilities of the underrepresented sex where its only action since 1991 with regard to the underrepresented sex was to eliminate a team for which there was interest, ability and available competition.
In the mid-1970s, Institution C established five teams for women. In 1979 it added a women's varsity team. In 1984 it upgraded a women's club sport with twenty-five participants to varsity team status. At that time it eliminated a women's varsity team that had eight members. In 1987 and 1989 Institution C added women's varsity teams that were identified by a significant number of its enrolled and incoming female students when surveyed regarding their athletic interests and abilities. During. this time it also increased the size of an existing women's team to provide opportunities for women who expressed' interest in playing that sport. Within the past year, it added a women's varsity team based on a nationwide survey of the most popular girls high school teams. Based on the addition of these teams, the percentage of women participating in varsity athletics at the institution has increased. OCR would find Institution C in compliance with part two because it has a history of program expansion and the elimination of the team in 1984 took place within the context of continuing program expansion for the underrepresented sex that is responsive to their developing interests.
Institution D started its women's program in the early 1970s with four teams. It did not add to its women's program until 1987 when, based on requests of students and coaches, it upgraded a women's club sport to varsity team status and expanded the size of several existing women's teams to accommodate significant expressed interest by students. In 1990 it surveyed its enrolled and incoming female students; based on that survey and a survey of the most popular sports played by women in the region, Institution D agreed to add three new women's teams by 1997. It added a women's team in 1991 and 1994. Institution D is implementing a plan to add a women's team by the spring of 1997. OCR would find Institution D in compliance with part two. Institution D's program history since 1987 shows that it is committed to program expansion for the underrepresented sex and it is continuing to expand its women's program in light of women's developing interests and abilities.
While disproportionately high athletic participation rates by an institution's students of the over represented sex (as compared to their enrollment rates) may indicate that an institution is not providing equal athletic opportunities to its students of the underrepresented sex, an institution can satisfy part three where there is evidence that the imbalance does not reflect discrimination, i.e., where it can be demonstrated that, notwithstanding disproportionately low participation rates by the institution's students of the underrepresented sex, the interests and abilities of these students are, in fact, being fully and effectively accommodated.
In making this determination, OCR will consider whether there is (a) unmet interest in a particular sport; (b) sufficient ability to sustain a team in the sport; and (c) a reasonable expectation of competition for the team. If all three conditions are present OCR will find that an institution has not fully and effectively accommodated the interests and abilities of the underrepresented sex.
If an institution has recently eliminated a viable team from the intercollegiate program, OCR will find that there is sufficient interest, ability, and available competition to sustain an intercollegiate team in that sport unless an institution can provide strong evidence that interest, ability, or available competition no longer exists.
**While these indications of interest may be helpful to OCR in ascertaining likely interest on campus, particularly in the absence of more direct indicia; an institution is expected to meet the actual interests and abilities of its students and admitted students.An institution may evaluate its athletic program to assess the athletic interest of its students of the underrepresented sex using nondiscriminatory methods of its choosing. Accordingly, institutions have flexibility in choosing a nondiscriminatory method of determining athletic interests and abilities provided they meet certain requirements. See 44 Fed. Reg. at 71417. These assessments may use straightforward and inexpensive techniques, such as a student questionnaire or an open forum, to identify students' interests and abilities. OCR often recommends surveys because they are usually the simplest method for assessing interest. Thus, while OCR expects that an institution's assessment should reach a wide audience of students and should be open-ended regarding the sports students can express interest in, OCR does not require elaborate scientific validation of assessments.
An institution's evaluation of interest should be done periodically so that the institution can identify in a timely and responsive manner any developing interests and abilities of the underrepresented sex. The evaluation should also take into account sports played in the high schools and communities from which the institution draws its students both as an indication of possible interest on campus and to permit the institution to plan to meet the interests of admitted students of the underrepresented sex.
At the same time, this flexibility must be used by institutions consistent with Title IX's requirement that they not discriminate on the basis of sex. OCR recognizes that institutions face challenges in providing nondiscriminatory participation opportunities for their students and will continue to assist institutions in finding ways to meet these challenges.