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Since 1979, the U.S. Department of Education has utilized a three-pronged test to determine whether collegiate athletic programs are in compliance with Title IX. This test mandates (1) athletic opportunities at the intercollegiate level provided in numbers substantially proportionate to student enrollment; or (2) a “continuing practice of program expansion” that is responsive to the interests and abilities of the underrepresented sex; or (3) athletic opportunities that “fully and effectively” accommodate the interests and abilities of the underrepresented sex.
The U.S. Commission on Civil Rights recently issued a report entitled “Title IX Athletics – Accommodating Interests and Abilities” (the Vanderbilt Journal of Entertainment and Technology Law was mentioned in the report). With respect to prong three, the report advocates the use of a “Model Survey” that was first released by the Office for Civil Rights in March of 2005. The 2005 Additional Clarification – a letter accompanying the Model Survey — noted that, “[w]hen the Model Survey is properly administered to all full-time undergraduate students . . . results that show insufficient interest to support an additional varsity team for the underrepresented sex will create a presumption of compliance with part three of the three-part test.” (emphasis added).
As noted in the Commission’s report, the Model Survey was created in response to claims that, in an effort to establish compliance through “substantial proportionality” (prong one), many colleges were forced to dismantle men’s athletic programs. In order to prevent the “unnecessary reduction of men’s athletic opportunities,” the report encourages use of the Model Survey as the primary method of compliance with Title IX.
The Model Survey must be “properly administered” before it can give rise to a presumption of compliance. Daniel Cohen, a panelist before the Commission, noted that – in order to be “properly administered” – the Model Survey must generate a high response rate from the student body. Cohen further clarified that the preferred method is to distribute the Model Survey as a mandatory part of the institution’s registration or application process. Some schools, however, have distributed the survey to the student body via email. The 2005 Clarification allows institutions to treat non-responses to emailed surveys as an indication of a lack of interest in athletic participation, provided that the survey clearly stated its purpose and students were informed of the consequences of failing to respond. In her statement, panelist Jocelyn Samuels criticized this practice, arguing that it “allows the schools to create the fiction that one-hundred percent of surveyed students have responded.”
Since 2005, the Model Survey has been subjected to considerable criticism. The National Collegiate Athletic Association (NCAA) is particularly vocal in its disagreement, discouraging member institutions from using the Model Survey to determine Title IX compliance. Further, Marcia D. Greenberger, co-president of the National Women’s Law Center, condemned the survey as “a major loophole through which schools can evade their Title IX obligations.” Expressing concern over the reliability of email-based survey results, Greenberger asked, “How many people open, let alone respond to, e-mail surveys?”
Samuels and Greenberger certainly expose some troubling aspects of the 2005 Additional Clarification. Despite these concerns, the Commission continues to assert that a mandatory response methodology is a preferred, rather than a required, practice. Further, the Commission’s recommendations fail to address the misleading treatment of non-responses as responses indicating lack of interest. Without more specific requirements ensuring the reliability of Model Survey results, it is unlikely that organizations like the NCAA will waver in their objection to the use of the survey as the sole means of establishing compliance with Title IX.
– Lacey R. Logsdon
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