The Women's Freedom Network Newsletter March/April & May/June, 2003;  Volume 10, Nos. 2 & 3 Title IX Commission Recommendations by WFN Staff

The Secretary of Education's Commission on Opportunity in Athletics released its final report on January 29, 2003. The report included twenty-three recommendations, of which fifteen were adopted unanimously, including numbers 1, 3-7, 9, 10, 13, 14, 16, 19, and 21-23. Listed below is the full set of commission recommendations. Secretary of Education Rod Paige announced that he would accept only the fifteen unanimous recommendations.

1. The Department of Education should reaffirm its strong commitment to equal opportunity and the elimination of discrimination for girls and boys, women and men.

2. Any clarification or policy interpretation should consider the recommendations that are approved by this Commission, and substantive adjustments to current enforcement of Title IX should be developed through the normal federal rule-making process.

3. The Department of Education's Office for Civil Rights should provide clear, consistent and understandable written guidelines for implementation of Title IX and make every effort to ensure that the guidelines are understood, through a national education effort. The Office for Civil Rights should ensure that enforcement of and education about Title IX is consistent across all regional offices.

4. The Office for Civil Rights should not, directly or indirectly, change current policies in ways that would undermine Title IX enforcement regarding nondiscriminatory treatment in participation, support services and scholarships.

5. The Office for Civil Rights should make clear that cutting teams in order to demonstrate compliance with Title IX is a disfavored practice.

6. The Office for Civil Rights should aggressively enforce Title IX standards, including implementing sanctions for institutions that do not comply. The Department of Education should also explore ways to encourage compliance with Title IX, rather than merely threatening sanctions.

7. The Department of Education should encourage educational and sports leaders to promote male and female student interest in athletics at the elementary and secondary levels to encourage participation in physical education and explore ways of encouraging women to walk on to teams.

8. The Department of Education should encourage educational institutions and national athletic governance organizations to address the issue of reducing excessive expenditures in intercollegiate athletics. Possible areas to explore might include an antitrust exemption for college athletics.

9. The Department of Education should encourage the redesign of the Equity in Athletics Disclosure Act so that it provides the public with a relevant and simplified tool to evaluate the status of Title IX compliance in the nation's post-secondary institutions.

10. The Office for Civil Rights should disseminate information on the criteria it uses to help schools determine whether activities they offer qualify as athletic opportunities.

11. The Office for Civil Rights should educate educational institutions about the standards governing private funding of particular sports aimed at preventing those sports from being dropped or to allow specific teams to be added.

12. The Office for Civil Rights should examine its regulations regarding the standards governing private funding of particular sports aimed at preventing those sports from being dropped or to allow specific teams to be added.

13. The Department of Education should encourage the NCAA to review its scholarship and other guidelines to determine if they adequately promote or hinder athletic participation opportunities.

14. If substantial proportionality is retained as a way of complying with Title IX, the Office for Civil Rights should clarify the meaning of substantial proportionality to allow for a reasonable variance in the relative ratio of athletic participation of men and women while adhering to the nondiscriminatory tenets of Title IX.

15. The Office for Civil Rights should consider a different way of measuring participation opportunities for purposes of allowing an institution to demonstrate that it has complied with the first part of the three-part test. An institution could establish that it has complied with the first part of the test by showing that the available slots for men and women as demonstrated by the predetermined number of participants for each team offered by the institution, is proportional to the male/female ratio in enrollment.

16. In providing technical assistance, the Office for Civil Rights should advise schools, as necessary, that walk-on opportunities are not limited for schools that can demonstrate compliance with the second or third parts of the three-part test.

17. For the purpose of calculating proportionality with the male/female ratio of enrollment in both scholarships and participation, these ratios will exclude walk-on athletes as defined by the NCAA. Proportionality ratios will be calculated through a comparison of full or partial scholarship recipients and recruited walk-ons.

18. The Office for Civil Rights should allow institutions to conduct continuous interest surveys on a regular basis as a way of (1) demonstrating compliance with the three-part test, (2) allowing schools to accurately predict and reflect men's and women's interest in athletics over time, and (3) stimulating student interest in varsity sports. The Office should specify the criteria necessary for conducting such a survey in a way that is clear and understandable.

19. The Office for Civil Rights should study the possibility of allowing institutions to demonstrate that they are in compliance with the third part of the three-part test by comparing the ratio of male/female athletic participation at the institution with the demonstrated interests and abilities shown by regional, state or national youth or high school participation rates or national governing bodies, or by the interest levels indicated in surveys or prospective or enrolled students at that institution.

20. In demonstrating compliance with the proportionality requirement of the first part of the three-part test, the male/female ratio of athletic participation should be measured against the male/female ratio of an institution's undergraduate population minus nontraditional students.

21. The designation of one part of the three-part test as a "safe harbor" should be abandoned in favor of a way of demonstrating compliance with Title IX's participation requirement that treats each part of the test equally. In addition, the evaluation of compliance should include looking at all three parts of the test, in aggregate or in balance, as well as individually.

22. The Office for Civil Rights should be urged to consider reshaping the second part of the three-part test, including by designating a point at which a school can no longer establish compliance through this part.

23. Additional ways of demonstrating equity beyond the existing three-part test should be explored by the Department of Education. It now remains to be seen how these 15 recommendations will be implemented.