Pro-quota v. No-quota Positions on the “Additional Clarification” of Prong 3
In March 2005, the Office of Civil Rights (OCR) of the U. S. Department of Education issued the Additional Clarification of the Intercollegiate Athletics Policy. The “Clarification” allows colleges to use student interest web-based surveys that follow specific technical guidelines outlined by the National Center for Education Statistics (NCES) to assess students’ athletic interests as a means to demonstrate Title IX compliance with Prong 3 (meeting athletic interests and abilities). According to the OCR, there is no fairer way to measure interest than to ask directly. To provide technical assistance in implementing a viable interest evaluation that is acceptable, the NCES prepared the “Model Survey” and User’s Guide to Developing Student Interest Surveys.
The following are the positions taken by the pro-quota activists that want to ban the use of surveys in favor of the use of inflexible quotas versus the Fairness in Sports Foundation that is rallying to eliminate the rigid affirmative action quota system.
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Pro-quota Position: The Clarification’s “Model Survey” is flawed because a lack of response to an email survey is interpreted as “no interest” which allows schools to avoid adding new opportunities for women even where interest may exist on campus. Per the NCAA President, Myles Brand, “The e-mail survey suggested in the clarification will not provide an adequate indicator of interest among young women to participate in college sports, nor does it encourage young women to participate.”
No-quota Position: Many colleges have policies requiring students to read and respond to official e-mails. However, the Additional Clarification does not favor use of an email survey (that is, an email with a link to a web-based survey). The User’s Guide recommends that the surveys are given out to both male and female students as a part of a mandatory process, such as class registration. The Clarification provides the tools to administer a student interest web-based survey* that follows specific technical guidelines outlined by the NCES (the “Model Survey User’s Guide”) in order to achieve compliance. It states:
“Based on the analysis of the OCR cases and other information, the User’s Guide provides a web-based prototype survey (the “Model Survey”) that, if administered consistent with the recommendations in the User’s Guide, institutions can rely on as an acceptable method to measure students’ interests in participating in sports.”
*A Web-based survey is the collection of data through a self-administered electronic set of questions on the Web. (Thomas M. Archer – Leader, Program Development and Evaluation, Ohio State University Extension)
Title IX was enacted to protect against discrimination – NOT promote sports on college campuses. Title IX is being used unjustly as a tool to develop athletic interest in women, to “encourage young women to participate”, and to correct for past discrimination.
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Pro-quota Position: Surveys usually only show that sports opportunities for women have been limited in the past. If they reveal a lack of interest in particular sports, it is most likely because they have not had the chance to play those sports.
No-quota Position: Title IX was drafted in response to the few opportunities available to female athletes in intercollegiate athletics. The circumstances and assumptions of that time no longer exist. Girls today have the chance to play a variety of sports. According to the National Federation of State High School Associations’ Annual Sports Participation Survey:
- From 2006-07, 3.02 million female students participated in interscholastic athletics compared to fewer than 300,000 in 1971.
- From 2006-07, girls participated in over 48 sports with the following being the most popular:
Basketball – 456,967 participants
Outdoor track and field – 444,181
Volleyball – 405,832
Fast pitch softball – 373,448
Soccer – 337,632
Cross Country – 183,376
Tennis – 176,696
Swimming and diving – 143,639
Competitive cheerleading – 95,177
Golf – 66,283
A 1998 report found that even girls ages 6 to 11 regularly participated in sports such as soccer, volleyball, and basketball. Since 1987 participation increased 86% (from 2 million to 3.8 million).
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Pro-quota Position: Allowing schools to rely on surveys of current students’ interests allows schools to claim they are providing enough opportunities for women, but this is only because students are not likely to attend a school if the sport they are interested in is not offered.
No-quota Position: That is true, but surveys are a starting point. Title IX requires institutions to accommodate the interests and abilities of their full-time attending and admitted students (not potential students). The intention of the federal law is to accommodate current students, not predict or measure future interest. If a survey reveals there is significant interest and ability to start an athletic program for men or women, the athletes may not be competitive at the Varsity level in their competitive region if the school has not historically offered that sport. However, starting a collegiate club program is an acceptable means to meet significant interests and abilities. Club programs can attract talented student-athletes whereby these programs may eventually be elevated to Varsity status.
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Pro-quota Position: The Clarification’s “Model Survey” is flawed because women may not say or know that they have the ability to compete in certain sports.
No-quota Position: Title IX in athletics was enacted to protect against discrimination. Accommodating current interests and abilities is a measure of compliance with the law. It was NOT intended to cultivate the interest and athleticism in women. Through interest surveys, a school could conclude that a certain level of interest exists and it could appropriately provide opportunities in proportion with the measured and true interests of their students, rather than ‘created’ interests.
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Pro-quota Position: Surveys shift the burden to female students to prove that their schools are not satisfying their interests and that they are entitled to more opportunities.
No-quota Position: Per the User’s Guide, it is recommended that the “Model Survey” is administered to BOTH male and female students to properly evaluate athletic interests and abilities.
In the case of an OCR investigation or compliance review, the burden of proof is on OCR; or in the case of a student complaint filed with the institution under its Title IX grievance procedures, the burden is on students. The student(s) who file a complaint must show by a preponderance of evidence that the institution is not in compliance with Prong 3.