(A less detailed version of this article appeared in Higher Ed Impact in May 2011. This week, we returned to Title IX compliance experts Betsy Alden and Jeff Orleans to dig deeper into additional tips and strategies for Title IX compliance. At the end of this article, Betsy Alden also offers a Title IX primer for institutions seeking to audit their compliance.)

Last year, the Office for Civil Rights (OCR) altered the 1979 "third prong" standard for Title IX compliance, changing an interpretation from the prior administration, and recently, at the NCAA's May 2011 Gender Equity Forum, an OCR official sought to clarify what Title IX compliance entails; the resulting picture suggests a need for more rigorous standards and assessments than have been seen over the past decade. To learn more about what's changing and where institutions need to be proactive in order to manage their Title IX liability, we turned to Betsy Alden (who has conducted many Title IX reviews for higher ed institutions) and Jeff Orleans (who helped write the original regulation for Title IX of the Education Amendments of 1972) with Alden & Associates Inc.

A Shift from the Past

What became apparent from the OCR representative's remarks at the NCAA's Gender Equity Forum earlier this year, according to Jeff Orleans, "is that schools can no longer rely on the 'third prong' standard that if you show that you are satisfying the interests and abilities of student athletes regardless of the counts, you were in compliance. What I heard from the OCR official in May is a definite shift from that. We are looking toward a rigorous and detailed set of standards for assessing interest, and for monitoring and repeating those assessments."

Orleans adds that much remains "up in the air," but that the OCR official also implied (to much comment) that an institution may be liable for responding to expressions of interest not only by current students but also by admitted students, whether or not they actually attend the institution.

The implications of this still need to be clarified, and Orleans expresses reservations about the OCR's grasp of what may be feasible for higher ed institutions. However, Orleans regards the bulk of the Office for Civil Rights' new position on Title IX compliance as positive: "Many have felt that the previous standard was too ambiguous; it will be helpful to have clearer standards of what is compliance and what isn't."

The Need for a Comprehensive Title IX Audit

Wherever specific standards land, it is going to be important to think more rigorously about Title IX compliance. "Title IX compliance is an ongoing process," Alden advises, "and can often be perceived as a slippery slope. But a solid knowledge of Title IX and how it works, as well as a vigilant compliance plan, will help put the institution in good stead."

Besides stressing the need to identify growth opportunities like that hypothetical one, Alden and Orleans offer these three scenarios to illustrate the types of potential problem areas you want to watch for in a Title IX review:

Scenario A: When You Think Recruitment Dollars Aren't Needed

At Anonymous University, a coach for a very successful women's sports program believes that she doesn't actually need to spend much on recruiting; she is attracting good student athletes already through word of mouth and winning seasons, and so she would rather allocate her funding for recruitment to other needs. While sensible on the surface, this decision would leave Anonymous University open to compliance risk; "the football coach is spending every dime of his money," Alden warns, "but this other program is spending very little. It appears on paper that there is an inequity in recruitment spending. In this case, further investigation needs to take place to make sure there are no inequities."

Scenario B: Counting Your Bench

Alden recalls a situation she came across during a Title IX review a few years ago. During her visit to the institution, she observed the women's basketball practice and noticed that there was a large group of women on the sidelines of the court. "It turns out that there were 28 women on this team," Alden recalls, "but only five actually on the court during play. They were filling out the roster without actually getting quality participation. I recommended that they reduce the number of women on the team."

Alden advises that there are some teams that offer more participation opportunities -- such as cross country, rowing, and track and field. For sports that require a specified number of athletes on the court or the field, however -- such as field hockey, lacrosse, basketball, and volleyball -- it's important to carefully monitor and control the rosters. (The OCR representative at the recent NCAA forum also emphasized the need for reported numbers to represent genuine opportunities.)

Scenario C: Your Football Feasibility Study

For small colleges considering adding a football program (perhaps as a move to attract more male students), make certain your feasibility study includes impact on Title IX compliance; you need to see an assessment of where you are on compliance both before and after adding football, and an estimate of how much you would need to spend to add to or expand your women's sports.

Often at smaller, Division III institutions, decisions to add a men's sport are driven by the enrollment manager, as an admissions strategy. Alden and Orleans stress the importance of having an array of voices at the table for the decision. "This can't be a decision made in a vacuum," Alden warns. Alden cites the case of a Division III college in Arkansas that had prioritized getting access to the Atlantic and the Northeast. By having a discussion that openly considered both the school's enrollment strategy and Title IX concerns, the institution was able to reach the decision to begin by adding a smaller team -- a men's lacrosse team -- that would recruit from the Northeast, while funding the addition of field hockey or women's golf to remain in compliance.

Orleans adds, "Even if you are a smaller instritution, you need to have a Title IX coordinator who can warn the president at the outset of this decision process whether adding a particular sport will endanger the institution's compliance. If your institution is a small, private liberal arts college with an enrollment that is 60 percent women, the compliance issue may never have occurred to your college's leadership. You may be in compliance in every other particular, and then an enrollment decision is made without thinking of the compliance issue, and you have trouble."

A Title IX Primer

Betsy Alden has prepared this Title IX primer as a free resource to offer athletics and other administrators an "everyday English" overview of Title IX and how it works, and to discuss the importance of bringing key stakeholders together to discuss compliance issues. Orleans adds, "Administrators can use this resource as the basis for working with coaches. It will provide a shared language for discussions around Title IX compliance."

For a more comprehensive walkthrough of compliance strategies, attend our upcoming webcast "Title IX and Athletics: Practical Ways to Comply," which will also provide a downloadable checklist to assist you in remembering and applying these strategies. Jeff Orleans and Andrea "Andi" Seger (senior associate, Alden and Associates) will be the webcast's instructors.