Education Dept. ‘further clarifies’ Title IX enforcement

Several months have passed since a federal commission urged changes to how the government enforces Title IX of the Education of Amendments. Several years have passed since the Education Department’s Office for Civil Rights last issued a Clarification of OCR’s policies to determine compliance with the measure. On July 11, in a “Dear Colleague” letter, OCR issued what Gerald Reynolds, assistant secretary for civil rights, termed a “Further Clarification of Intercollegiate Athletics Policy Guidance Regarding Title IX Compliance.”

In February 2003, the Secretary of Education’s Commission on Opportunity in Athletics released a report entitled “‘Open to All’: Title IX at Thirty.” The report praised the legislation but castigated OCR. Chief among its criticisms is that OCR was unclear in its policy interpretation released in 1979 that created a three-prong test of compliance. Other criticisms were that its field office gave conflicting information regarding compliance, that the legislation was not implemented strongly enough, and that confusion from the 1979 interpretation and the 1996 Clarification led to many men’s teams being dropped. Furthermore, the report found, OCR doesn’t properly enforce its three-prong test.

The three prongs of the compliance test are these: (1) the “substantially proportionate” test, whether the male/female ratio of athletes is similar to the male/female ratio of enrollment; (2) the “history and continuing practice” test, whether the university can demonstrate a history and continuing practice of expanding athletic programs to the underrepresented gender; and (3) the “fully and effectively” test, whether the university is meeting fully and effectively the athletic interests and abilities of the underrepresented gender. To be in compliance under Title IX, the university need only meet one of those three tests.

The Reynolds “Further Clarification” says the three prong test has “worked well,” but that appears counter to the commission’s report. Along with the criticisms above, the report found that OCR has let it be known it favors the “substantially proportionate” test as the only “safe harbor” standard to meet to avoid further OCR scrutiny. The report stated, “If a school claims it is in compliance under one of the other tests, the Office will scrutinize that claim more carefully since compliance under either of these parts is not a safe harbor.”

Reynolds did address that issue in the “Further Clarification.” Because the “transmittal letter accompanying the 1996 Clarification … described only one of these separate three prongs — substantial proportionality — as a ‘safe harbor’ for Title IX compliance,” Reynolds wrote, many schools were led “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.”

Reynolds wrote that “OCR encourages schools to take advantage of its flexibility, and to consider which of the three prongs best suits their individual situations. … Each of the prongs is thus a valid, alternative way for schools to comply with Title IX.”

The “Further Clarification” also addressed the issue of teams being eliminated as a backdoor way to compliance. The issue has been a sore one for foes and athletic victims of OCR’s Title IX enforcement, especially with regard to its public appearance of only favoring substantial proportionality as a “safe harbor” from OCR scrutiny.

As the Independent Woman’s Forum’s Jessica Gavora wrote in the Washington Post in 2001, “A 1997 NCAA gender equity study showed that more than 200 men’s teams and 20,000 male athletes disappeared from the ranks of America’s colleges between 1992 and 1997. A 1999 study by the General Accounting Office found that men’s opportunities had declined by 12% since 1985. Meanwhile, during the same period, the number of boys playing high school sports increased by about 400,000.”

By 2002, according to Christine Stolba of the IWF, “more than 80,000 slots for male athletes on intercollegiate teams have disappeared from college campuses.” On May 9, 2002, the New York Times reported that a General Accounting Office study found that “more than 170 wrestling programs, 80 men’s tennis teams, 70 men’s gymnastics teams and 45 men’s track teams have been eliminated.”

Reynolds did not address the enormity of the issue of teams being eliminating, writing instead that “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.” The latter phrase was suggested by the commission’s report.

More to the heart of the matter, Reynolds wrote that “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.”

The “Further Clarification” also included:
• a pledge to “aggressively enforce Title IX standards” (suggested by the commission)
• a continued allowance of “private sponsorship of athletic teams” (the commission suggested clarifying the rules governing private sponsorship)
• a pledge for “clear and consistent implementation of Title IX,” such that “OCR will ensure that its enforcement practices do not vary from region to region (also suggested by the commission)
• a reaffirmation of OCR’s “commitment to equal opportunity for girls and boys, women and men” (also suggested by the committee).
The “Further Clarification” letter is available online at The commission report is at