Late last Friday afternoon, the Department of Education released a letter weakening the requirements of Part Three of the three-part test by which colleges and universities measure their compliance with Title IX, the 1972 federal law prohibiting sex discrimination at institutions receiving federal financial assistance for education programs and activities. Essentially the Bush Administration is trying to do by administrative fiat what a Bush athletic commission tried to do more publicly in 2003. Before the election, the Bush Department of Education rejected the commission’s recommendations and reaffirmed Title IX. Now, after the election, the Department of Education is trying to quietly, without public notice, weaken Title IX.
Released without advance notice, the letter informed schools with intercollegiate varsity sports that sending an email survey to female students asking them if there are any additional athletic opportunities they would like to have open to them is sufficient to prove that “the school is fully and effectively accommodating the interest and abilities of the underrepresented sex.” This is a change from policy guidance released in the past two decades by the Dept. of Education, specifically the 1996 guidelines which state that multiple indicators such as interviews with students, coaches, and faculty should be used to assess the athletic interests of the underrepresented sex.
The model email survey option, which shifts the burden to female students and requires them to be the impetus for equitable athletic opportunities, is inherently flawed and is not a valid interpretation of Title IX. The National Women’s Law Center contends that these email surveys will most likely reflect the discrimination in athletics that already exists against women and girls, stating that “women and girls might not express interest and ability in particular sports if they have not had the chance to play them.” Additionally, a survey sent only to students will not include the vital opinions and perspectives of the school’s coaches and administrators.
The Office for Civil Rights (OCR), which conducts compliance reviews “at its discretion,” reports that over two-thirds of colleges and universities analyzed between the years of 1992 and 2002 used the third option of the three-part testÑwhich asks for proof that interests and abilities of female students are being metÑto show that they were treating women fairly, instead of the other two options, based on actual percentages of female and male students and history of progress in complying with Title IX.
Dr. Sue Klein, Education Equity Director of the Feminist Majority Foundation, said, “The weakening of this widely used Part Three option by easing the requirements for compliance and by shifting the burden of proof to the underrepresented students is not consistent with the Department’s conciliatory 2003 Clarification letter issued after the extensive public outcry to similar unpopular recommendations by the Secretary’s Commission on Opportunities in Athletics.” Dr. Klein continued, saying, “This new letter is an ill-advised and inappropriate way to change an important civil rights policy that has helped advance gender equity in college athletics, a job that is still not completed.”
Currently young women make up 53 percent of the student body in Division One schools, yet they receive only 41 percent of the athletic opportunities, 36 percent of the athletic budgets, and 32 percent of the recruit