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CLARIFICATION OF INTERCOLLEGIATE ATHLETICS POLICY
LETTER
UNITED STATES DEPARTMENT OF EDUCATION
Office for Civil Rights
January 16, 1996
Dear Colleague:
It is my pleasure to send you the enclosed
"Clarification of Intercollegiate Athletics Policy Guidance: The
Three-Part Test" (the Clarification). Accordingly, on September 20, 1995, OCR circulated
to over 4500 Interested parties a draft of the proposed Clarification,
soliciting comments about whether the document provided sufficient
clarity to assist institutions in their efforts to comply with Title
IX. As indicated when circulating the draft of the Clarification,
the objective of the Clarification is to respond to requests for
specific guidance about the existing standards that have guided
the enforcement of Title IX in the area of intercollegiate athletics.
Further, the Clarification is limited to an elaboration of the "three-part
test." This test, which has generated the majority of the questions
that have been raised about Title IX compliance, is a portion of
a larger analytical framework reflected in the 1979 Policy Interpretation.
OCR appreciates the efforts of the more than
200 individuals who commented on the draft of the Clarification.
In addition to providing specific comments regarding clarity, some
parties suggested that the Clarification did not go far enough in
protecting women's sports. Others, by contrast, suggested that the
Clarification, or the Policy Interpretation itself, provided more
protection for women's sports than intended by Title IX. However,
it would not be appropriate to revise the 1979 Policy Interpretation,
and adherence to its provisions shaped OCR's consideration of these
comments. The Policy Interpretation has guided OCR's enforcement
in the area of athletics for over fifteen years, enjoying the bipartisan
support of Congress. The Policy Interpretation has also enjoyed
the support of every court that has addressed issues of Title IX
athletics. As one recent court decision recognized, the "three-part
test" draws its "essence" from the Title IX statute.
The draft has been revised to incorporate
suggestions that OCR received regarding how to make the document
more useful and clearer. For instance, the Clarification now has
additional examples to illustrate how to meet part one of the three-part
test and makes clear that the term "developing interests" under
part two of the test includes interests that already exist at the
institution. The document also clarifies that an institution can
choose which part of the test it plans to meet. In addition, it
further clarifies how Title IX requires OCR to count participation
opportunities and why Title IX does not require an institution,
under part three of the test, to accommodate the interests and abilities
of potential students.
OCR also received requests for clarification
that relate primarily to fact- or institution-specific situations
that only apply to a small number of athletes or institutions. These
comments are more appropriately handled on an individual basis and,
accordingly, OCR will follow-up on these comments and questions
in the context of OCR's ongoing technical assistance efforts.
It is important to outline several points
about the final document.
The Clarification confirms that institutions
need to comply only with any one part of the three-part test in
order 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 an institution a "safe harbor" for
establishing that it provides nondiscriminatory participation opportunities.
An institution that does not provide substantially proportional
participation opportunities for men and women may comply with Title
IX by satisfying either 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.
In addition, the Clarification does not provide
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 to comply with the law.
Several parties who provided comments expressed
opposition to the three-part test. The crux of the arguments made
on behalf of those opposed to the three-part test is that the test
does not really provide three different ways to comply. Opponents
of the test assert, therefore, that the test improperly establishes
arbitrary quotas. Similarly, they also argue that the three-part
test runs counter to the intent of Title IX because it measures
gender discrimination by underrepresentation and requires the full
accommodation of only one sex. However, this understanding of Title
IX and the three-part test is wrong.
First, it is clear from the Clarification
that there are three different avenues of compliance. Institutions
have flexibility in providing nondiscriminatory participation opportunities
to their students, and OCR does not require quotas. For example,
if an institution chooses to and does comply with part three of
the test, OCR will not require it to provide substantially proportionate
participation opportunities to, or demonstrate a history and continuing
practice of program expansion that is responsive to the developing
interests of, the underrepresented sex. In fact, if an institution
believes that its female students are less interested and able to
play intercollegiate sports, that institution may continue to provide
more athletic opportunities to men than to women, or even to add
opportunities for men, as long as the recipient can show that its
female students are not being denied opportunities, i.e., that women's
interests and abilities are fully and effectively accommodated.
The fact that each part of the three-part test considers participation
rates does not mean, as some opponents of the test have suggested,
that the three parts do not provide different ways to comply with
Title IX.
Second, it is appropriate for parts two and
three of the test to focus only on the underrepresented sex. Indeed,
such a focus is required because Title IX, by definition, addresses
discrimination. Notably, Title IX's athletic provisions are unique
in permitting institutions--notwithstanding the long history of
discrimination based on sex in athletics programs--to establish
separate athletic programs on the basis of sex, thus allowing institutions
to determine the number of athletic opportunities that are available
to students of each sex. (By contrast, Title VI of the Civil Rights
Act of 1964 forbids institutions from providing separate athletic
programs on the basis of race or national origin.)
OCR focuses on the interests and abilities
of the underrepresented sex only if the institution provides proportionately
fewer athletic opportunities to members of one sex and has failed
to make a good faith effort to expand its program for the underrepresented
sex. Thus, the Policy Interpretation requires the full accommodation
of the underrepresented sex only to the extent necessary to provide
equal athletic opportunity, i.e., only where an institution has
failed to respond to the interests and abilities of the underrepresented
sex when it allocated a disproportionately large number of opportunities
for athletes of the other sex.
What is clear then--because, for example,
part three of the three-part test permits evidence that underrepresentation
is caused not by discrimination but by lack of interest-is that
underrepresentation alone is not the measure of discrimination.
Substantial proportionality merely provides institutions with a
safe harbor. Even if this were not the case and proportional opportunities
were the only test, the "quota" criticism would be misplaced. Quotas
are impermissible where opportunities are required to be created
without regard to sex. However, schools are permitted to create
athletic participation opportunities based on sex. Where they do
80 unequally, that is a legitimate measure of unequal opportunity
under Title IX. OCR has chosen to make substantial proportionality
only one of three alternative measures.
Several parties also suggested that, in determining
the number of participation opportunities offered by an institution,
OCR count unfilled slots, i.e., those positions on a team that an
institution claims the team can support but which are not filled
by actual athletes. OCR must, however, count actual athletes because
participation opportunities must be real, not illusory. Moreover,
this makes sense because, under other parts of the Policy Interpretation,
OCR considers the quality and kind of other benefits and opportunities
offered to male and female athletes in determining overall whether
an institution provides equal athletic opportunity. In this context,
OCR must consider actual benefits provided to real students.
OCR also received comments that indicate that
there is still confusion about the elimination and capping of men's
teams in the context of Title IX compliance. The rules here are
straightforward. An institution can choose to eliminate or cap teams
as a way of complying with part one of the three-part test. However,
nothing in the Clarification requires that an institution cap or
eliminate participation opportunities for men. In fact, cutting
or capping men's teams will not help an institution comply with
part two or part three of the test because these tests measure an
institution's positive, ongoing response to the interests and abilities
of the underrepresented sex. Ultimately, Title IX provides institutions
with flexibility and choice regarding how they will provide nondiscriminatory
participation opportunities.
Finally, several parties suggested that OCR
provide more information regarding the specific elements of an appropriate
assessment of student interest and ability. The Policy Interpretation
is intended to give institutions flexibility to determine interests
and abilities consistent with the unique circumstances and needs
of an institution. We recognize, however, that it might be useful
to share ideas on good assessment strategies. Accordingly, OCR will
work to identify, and encourage institutions to share, good strategies
that institutions have developed, as well as to facilitate discussions
among institutions regarding potential assessment techniques.
OCR recognizes that the question of how to
comply with Title IX and to provide equal athletic opportunities
for all students is a significant challenge that many institutions
face today, especially in the face of increasing budget constraints.
It has been OCR's experience, however, that institutions committed
to maintaining their men's program have been able to do so-and comply
with Title IX--notwithstanding limited athletic budgets. In many
cases, OCR and these institutions have worked together to find creative
solutions that ensured equal opportunities in intercollegiate athletics.
OCR is similarly prepared to join with other institutions in assisting
them to address their own situations.
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