Democrats attack Title IX Clarification

WASHINGTON – House Democrats are pushing President Bush to eliminate a Clarification made to Title IX regulations that would allow schools to use surveys to gauge student interests in athletic programs.

Title IX, created in 1972, prohibits publicly-funded institutions to discriminate based on sex. Since then, Title IX has been used to increase athletic opportunities for women and a three pronged test was established to determine if a school is in compliance.

In March, Assistant Secretary for Civil Rights James Manning issued a Clarification to Title IX that would permit schools to show that they are in compliance with the law by doing a survey of students to what percentage of men and women are interested in participating in collegiate sports. The Clarification allows a college to use the surveys to determine interest among women to create a new sport. The results of the survey then determine if a school is compliant with the requirement that a school must have done everything it could to insure that it has fulfilled interest in sports proportional to the interests shown by men and women students in the survey.

The other tests for compliance are the proportionality and historic practice tests, were not changed in the Clarification. The proportionality test states that the ratio between male and female athletes must be similar to the ration between male and female students. The historic practice test determines if a school has a historic practice of providing opportunities for underrepresented students.

Democrats issued the letter to mark the 33-year history of Title IX. On the same day, the NCAA issued a statement informing members not to follow the Clarification.

Led by House Minority Leader Nancy Pelosi, D-Calif., Democrats say the clarification to the “fully and effectively” test – one of three prongs used by the Department of Education’s Office for Civil Rights to determine if a school is in compliance – lowers the compliance standards and hinders opportunities for female athletes. In April, several women’s sports groups made similar claims.

Pelosi said allowing schools to use the survey would undermine the effectiveness of Title IX. Democrats also claim the clarification is an attempt by the Bush Administration to weaken Title IX regulations.

“We strongly believe that use of a survey alone, let alone an e-mail survey, cannot accurately determine student athletic interest or ability,” Democrats said in their letter. “By allowing schools to rely exclusively on a survey, the Clarification creates a major loophole and lowers the standard for Title IX compliance, jeopardizing the number of athletic opportunities available to women and girls in schools across the country.”

When issuing the Clarification, Manning said that surveys would be able to show not only compliance with Title IX, but also whether there is sufficient interest to create new athletic opportunities for men or women.

Democrats argue that a better compliance standard would be one that uses multiple resources, not all of which are within the school. In the letter, Democrats stated that they want to revert to previous policies that had schools to consult with coaches and administrators, interest in surrounding schools, and community sports leagues to determine an interest. They claim those previous policies “provide a more comprehensive and accurate reflect of student interest.”

“Under the new Clarification, the Department will allow schools to simply interpret a lack of response to the survey as evidence of lack of interest,” the Democrats write.

The use of surveys is not uncommon in complying with the “fully and effectively” test, Manning wrote when the clarification was issued. The Department of Education’s Office of Civil Rights provided a web-based survey model for schools to use if they wish to use the survey method to show compliance with the law.

The Bush Administration has made no comment regarding the Democrats’ letter.

Shannon Blosser ( is a staff writer with the John W. Pope Center for Higher Education Policy in Chapel Hill.