Additional Clarification of Intercollegiate Athletics Policy:  Three-Part Test – Part Three

Based on the analysis of the Office of Civil Rights, in March 2005 the OCR issued an Additional Clarification that allows institutions to use student interest web-based surveys that follow specific technical guidelines outlined by the National Center for Education Statistics (NCES) as an acceptable method to measure students’ interests in participating in sports. (Read the Facts.)  The survey is now one of three means to demonstrate compliance with Title IX and falls under Prong 3: Interest and Abilities Accommodation. The other means to show compliance with Title IX include Prong 1: Substantial Proportionality and Prong 2: Program Expansion.

The OCR’s Additional Clarification included a User’s Guide which provides a web-based prototype survey (the “Model Survey“) and technical guidelines to properly administer the survey to all full-time undergraduate students, or to all such students of the underrepresented sex. Where the Model Survey shows insufficient interest to field an additional varsity team for the underrepresented sex, the OCR will presume compliance with Prong 3 of the Title IX Three-Prong Test.

Affirmative Action

Meaning:  “Positive steps taken to increase the representation of women and minorities in areas of employment, education, and business from which they have been historically excluded.” (Stanford Encyclopedia of Philosophy)

The term ‘affirmative action’ was first used in Executive Order 11246, issued by Lyndon Johnson in 1965.  The Order directed federal government contractors to “take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin.”  Johnson expanded the Executive Order in 1967 to protect women from discrimination as well.  The Order explicitly forbids “rigid and inflexible quotas” – a form of preferential selection.

Cohen v. Brown University

In April 1992 a group of female gymnasts and volleyball players, led by plaintiff Amy Cohen (gymnast), sued the school claiming that it had violated Title IX by cutting support for women’s teams.  This case was a pivotal, precendent-setting gender-based discrimination lawsuit.  The federal courts’ interpretations of Title IX validated the Three-Prong Effective Accommodation Test promoting a quota system which has changed how Title IX dictates the way college athletics should be run.

Organized Collegiate Athletics

  1. Varsity – Varsity is the highest level of organized sports in Division I, II or III collegiate athletics with Division I being the highest.  Varsity sports are connected to the university’s Athletic Department and considered to be NCAA-sanctioned sports. The level of competition among such athletes is high enough to offer scholarships (except for Division III) and be recognized by the University. There are many recruiting rules that govern NCAA Athletics. Full-time varsity coaches are hired to produce winning teams.
  2. Collegiate Club – Club sports are organized by either a benefactor or students interested in a particular sport. They are not considered part of the athletic program, therefore, they are not funded by the university and must be financially self-sustaining. Club programs do not represent the school in NCAA Division I, II or III Athletics and NCAA recruiting rules do not apply to club sports. A club team may play other collegiate club and NCAA teams.
  3. Intramural – Intramural sports are the lowest level of organized collegiate athletics. They are leagues organized by dividing the student body into different teams who play one another.  Mandatory student activity fees fund intramural sports.

Participation Opportunities

Athletic participation opportunities are the number of individual athlete participation slots or roster numbers (not numbers of teams). Under Title IX Prong 1, if participation opportunities are proportional to the numbers of males and females in the general student body, the school meets the participation standard. When determining proportionality, the OCR looks at the participation opportunities for a given team from the date that team starts facing outside competition through the conclusion of the season.

  • In 1996, the OCR’s Clarification stated that participant opportunities “must be real, not illusory” and would only count actual athletes, not unfilled slots.  When Brown University was sued in 1992 for sex discrimination, 85 roster positions were left unfilled on female varsity teams.

Roster Management

Roster management is a practice of strictly limiting the number of participants (membership is “capped”) in men’s sports while trying to pad the rosters of women’s teams. These caps reduce male opportunities without providing any benefits to females. It’s a clear case of gender discrimination and is a way for athletic departments to comply with Title IX proportionality.

As a result, coaches lose control over their teams.  Men’s coaches have to cut players or turn away interested walk-on athletes.  Women’s coaches have to convince more players to fill roster spots, and may be forced to keep problem athletes they would prefer to cut.

When a school is in danger of having “too many” men and “too few” women, unfair limits are placed on male athletic participation. To achieve “substantial proportionality” as defined in the Cohen court and create the illusion of “gender equity”, male athletes lose their opportunity to compete when schools cannot enlist enough female student-athletes.

Three-Prong Test: Effective Accommodation of Student Interests and Abilities

The 1979 Intercollegiate Athletics Policy Interpretation of Title IX established three means by which institutions can demonstrate compliance of Section C – Effective Accommodation of Student Interests and Abilities.  They are collectively known as the “Three-Prong Effective Accommodation Test” (Three-Prong Test) or alternatively, as the “Three-Part Test”.  Compliance by an institution is assessed in any one of the following ways:

Prong 1.  Substantial Proportionality where intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective full-time undergraduate enrollments. In other words, if a school is 54% female, about the national average, then about 54% of its athletes should be female.

Prong 2.  Program Expansion where the institution can show a history and continuing practice of program expansion which is demonstrably responsive to the developing interests and abilities of the underrepresented sex (female students). That means, if a school has added teams for women or girls recently and over the years, it is probably in compliance – although only for a period of time.

Prong 3.  Interest and Abilities Accommodation where the institution can demonstrate that the interests and abilities of the members of that sex have been fully and effectively accommodated by the present program.