Change in Title IX Policy Raises Bar for Compliance

Vice President Joe Biden announced that the Department of Education has implemented a new policy under which it will consider more rigorous factors to assess compliance by colleges, universities and secondary schools with Title IX’s mandate for equal athletic opportunities for both sexes.

The Office for Civil Rights (OCR) will continue to use the three-part test that has been in place since 1979 as the basic framework to determine whether an institution is providing nondiscriminatory athletic participation opportunities.  An institution complies if it:

• Has substantially proportionate levels of athletic participation opportunities for male and female students respective to enrollment; or
• Has a history and continuing practice of expanding athletic programs for athletes of the underrepresented sex responsive to their developing interests and abilities; or
• Demonstrates that the interests and abilities of the members of the underrepresented sex have been fully and effectively accommodated by the present program.

Since 2005, institutions have been able to demonstrate that they accommodated the interests and abilities of the underrepresented sex by distributing a single survey.  In response to widespread criticism that the survey did not provide reliable results and allowed schools to avoid their responsibilities under Title IX, the single survey will no longer suffice.

OCR will now consider a broad range of factors to determine whether the institutions are meeting the interests and abilities of the underrepresented sex, including: whether an institution uses nondiscriminatory methods of assessment when determining athletic interests and abilities of its students, whether an institution recently eliminated a viable team for the underrepresented sex, multiple indicators of interest, multiple indicators of ability and frequency of conducting assessments.

To show compliance with Title IX’s nondiscrimination requirements, OCR recommends that institutions have (1) policies and procedures for receiving and responding to requests for additional teams; (2) procedures for and documentation showing routine monitoring of participation in club and intramural sports; and (3) procedures for and documentation showing the participation of the underrepresented sex in high school athletic programs, amateur athletic associations and community sports leagues that operate in the relevant area.