Department of Education Closes Book on Title IX
July 22, 2003
The U.S. Department of Education ended more than a year of speculation about potential changes to Title IX when it announced July 11 that it is committed to a policy of "continuing the progress that Title IX has brought toward true equality of opportunity for male and female student-athletes in America."
The statement also said that the Department of Education will view the elimination of men's teams as a "disfavored practice" for achieving Title IX compliance. No changes will be made to the current three-pronged test for Title IX compliance.
NCAA President Myles Brand praised the statement of Gerald Reynolds, assistant secretary for the Office for Civil Rights, and said that Reynolds' letter "provides an excellent platform for the future implementation of Title IX. It acknowledges past concerns and sets firm and fair directions for the future."
The statement was the culmination of a review that began last June 27 when Secretary of Education Rod Paige created the Secretary's Commission on Opportunities in Athletics to investigate issues surrounding Title IX. That commission conducted a series of hearings across the nation in late 2002 and early 2003 to help it form its recommendations. Stanford University Athletics Director Ted Leland and former WNBA player Cynthia Cooper chaired the commission.
On February 26, the commission presented its final report, "Open to All: Title IX at Thirty."
Brand said that the clarification letter, known as the "Further Clarification of Intercollegiate Athletics Policy Guidance Regarding Title IX Compliance," correctly emphasized that an institution of higher education can satisfy Title IX using any of the three prongs: substantial proportionality, a continuing history of program expansion for the under-represented gender or fully accommodating the interests of the under-represented gender. Each of the three prongs will continue to be individually sufficient for compliance.
Brand emphasized the importance of viewing the elimination of men's sports as a disfavored practice for meeting prong one.
"This is a victory for men's sports," Brand said, "especially Olympic and nonrevenue sports, as well as for women's sports."
In the clarification letter, Reynolds said: "OCR hereby clarifies that nothing in Title IX requires the cutting or reduction of teams in order to demonstrate compliance with Title IX and that the elimination of teams is a disfavored practice. Because the elimination of teams diminishes opportunities for students who are interested in participating in athletics instead of enhancing opportunities for students who have suffered from discrimination, it is contrary to the spirit of Title IX for the government to require or encourage an institution to eliminate athletics teams. Therefore, in negotiating compliance agreements, OCR's policy will be to seek remedies that do not involve the elimination of teams."
Reynolds' letter also noted the OCR's commitment to provide consistent enforcement across regions and to enhance its education and assistance to institutions in helping them to comply with Title IX.
"All young women and men engaged in athletics have reason to cheer today," Brand said. "And all of us who support their athletics endeavors, myself proudly included, should join in their celebration.
"I compliment Secretary Paige and the Commission on Opportunities in Athletics for their hard work and for setting the stage for this letter of clarification. I also compliment Mr. Reynolds and others involved in the final decisions for being judicious and future-directed.
"The NCAA will work closely with its member universities and colleges and with OCR to implement Title IX within the context of this clarification letter. We will assist in educational activities and use all other means at our disposal to support the intent and goals of Title IX."
Department of Education statement clarifying Title IX compliance
The full text of a July 11 letter from Gerald Reynolds, assistant secretary for the Office for Civil Rights of the U.S. Department of Education:
It is my pleasure to provide you with this Further Clarification of Intercollegiate Athletics Policy Guidance Regarding Title IX Compliance.
Since its enactment in 1972, Title IX has produced significant advancement in athletic opportunities for women and girls across the nation. Recognizing that more remains to be done, the Bush Administration is firmly committed to building on this legacy and continuing the progress that Title IX has brought toward true equality of opportunity for male and female student-athletes in America.
In response to numerous requests for additional guidance on the Department of Education's (Department) enforcement standards since its last written guidance on Title IX in 1996, the Department's Office for Civil Rights (OCR) began looking into whether additional guidance on Title IX requirements regarding intercollegiate athletics was needed. On June 27, 2002, Secretary of Education Rod Paige created the Secretary's Commission on Opportunities in Athletics to investigate this matter further, and to report back with recommendations on how to improve the application of the current standards for measuring equal opportunity to participate in athletics under Title IX. On February 26, 2003, the Commission presented Secretary Paige with its final report, "Open to All: Title IX at Thirty," and in addition, individual members expressed their views.
After eight months of discussion and an extensive and inclusive fact-finding process, the Commission found very broad support throughout the country for the goals and spirit of Title IX. With that in mind, OCR today issues this Further Clarification in order to strengthen Title IX's promise of non-discrimination in the athletic programs of our nation's schools.
Title IX establishes that: "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance."
In its 1979 policy interpretation, the Department established a three-prong test for compliance with Title IX, which it later amplified and clarified in its 1996 Clarification.
The test provides that an institution is in compliance if (1) the intercollegiate-level participation opportunities for male and female students at the institution are "substantially proportionate" to their respective full- time undergraduate enrollments, (2) the institution has a "history and continuing practice of program expansion" for the under-represented sex or (3) the institution is "fully and effectively" accommodating the interests and abilities of the under-represented sex.
First, with respect to the three-prong test, which has worked well, OCR encourages schools to take advantage of its flexibility, and to consider which of the three prongs best suits their individual situations. All three prongs have been used successfully by schools to comply with Title IX, and the test offers three separate ways of assessing whether schools are providing equal opportunities to their male and female students to participate in athletics. If a school does not satisfy the "substantial-proportionality" prong, it would still satisfy the three-prong test if it maintains a history and continuing practice of program expansion for the under-represented sex, or if "the interests and abilities of the members of (the under-represented) sex have been fully and effectively accommodated by the present program." Each of the three prongs is thus a valid, alternative way for schools to comply with Title IX.
The transmittal letter accompanying the 1996 Clarification issued by the Department described only one of these three separate prongs -- substantial proportionality -- as a "safe harbor" for Title IX compliance. This led many schools to believe, erroneously, that they must take measures to ensure strict proportionality between the sexes. In fact, each of the three prongs of the test is an equally sufficient means of complying with Title IX, and no one prong is favored. The Department will continue to make clear, as it did in its 1996 Clarification, that "(i)nstitutions have flexibility in providing nondiscriminatory participation opportunities to their students, and OCR does not require quotas."
In order to ensure that schools have a clear understanding of their options for compliance with Title IX, OCR will undertake an education campaign to help educational institutions appreciate the flexibility of the law, to explain that each prong of the test is a viable and separate means of compliance, to give practical examples of the ways in which schools can comply, and to provide schools with technical assistance as they try to comply with Title IX.
In the 1996 Clarification, the Department provided schools with a broad range of specific factors, as well as illustrative examples, to help schools understand the flexibility of the three-prong test. OCR reincorporates those factors, as well as those illustrative examples, into this Further Clarification, and OCR will continue to assist schools on a case-by-case basis and address any questions they have about Title IX compliance. Indeed, OCR encourages schools to request individualized assistance from OCR as they consider ways to meet the requirements of Title IX. As OCR works with schools on Title IX compliance, OCR will share information on successful approaches with the broader scholastic community.
Second, OCR hereby clarifies that nothing in Title IX requires the cutting or reduction of teams in order to demonstrate compliance with Title IX, and that the elimination of teams is a disfavored practice. Because the elimination of teams diminishes opportunities for students who are interested in participating in athletics instead of enhancing opportunities for students who have suffered from discrimination, it is contrary to the spirit of Title IX for the government to require or encourage an institution to eliminate athletic teams. Therefore, in negotiating compliance agreements, OCR's policy will be to seek remedies that do not involve the elimination of teams.
Third, OCR hereby advises schools that it will aggressively enforce Title IX standards, including implementing sanctions for institutions that do not comply. At the same time, OCR will also work with schools to assist them in avoiding such sanctions by achieving Title IX compliance.
Fourth, private sponsorship of athletic teams will continue to be allowed. Of course, private sponsorship does not in any way change or diminish a school's obligations under Title IX.
Finally, OCR recognizes that schools will benefit from clear and consistent implementation of Title IX. Accordingly, OCR will ensure that its enforcement practices do not vary from region to region.
OCR recognizes that the question of how to comply with Title IX and to provide equal athletic opportunities for all students is a challenge for many academic institutions. But OCR believes that the three-prong test has provided, and will continue to provide, schools with the flexibility to provide greater athletic opportunities for students of both sexes.
OCR is strongly reaffirming today its commitment to equal opportunity for girls and boys, women and men. To that end, OCR is committed to continuing to work in partnership with educational institutions to ensure that the promise of Title IX becomes a reality for all students. Thank you for your continuing interest in this subject.
Assistant Secretary for Civil Rights