The Changing Shape of Title IX Compliance

May 12, 2011. In 2010, the Office for Civil Rights (OCR) rescinded the 2005 "third prong" standard for Title IX compliance, and recently, at NCAA's Gender Equity Forum, OCR and Department of Education (DOE) officials have 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 month, Jeff Orleans comments, "is that schools that have been 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. Under the Bush administration, you just had to survey and account for student interest in given sports. What I heard from the OCR official earlier this month 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 institutions may be liable for responding to expressions of interest not only by current students but also by admitted students, whether or not they in fact attend.

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."

Alden and Orleans offer these scenarios to illustrate the types of potential problem areas you want to watch for:

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."

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.)

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.

"One thing that's really clear from the OCR comments is that they'll be looking much more rigorously at what happens when a school adds or drops a sport and how that affects ratios."
Jeff Orleans, Alden & Associates Inc.

Making Progress: Couple Title IX Efforts with Other Initiatives

Orleans suggests that after concluding a Title IX review, institutions can see the most progress on compliance recommendations if they couple compliance work with other institutional priorities. "Your athletics department will need to coordinate with others across the institution," Orleans notes, "but your vice president of student affairs or your chief budget officer may be preoccupied with other high priorities. If you can help that officer link Title IX work to things they need to do for the campus anyway -- maybe a student recruitment effort, or an investment in facilities -- you have the opportunity to do two things at once."

Orleans offers this example:

A Partnership with Development

The athletics office at Institution X has been facing challenges in securing sufficient funding from alumni for several women's sports. Orleans notes that many women in their 40s now have the financial ability to make significant contributions; the athletics director at Institution X could approach the institution's central development office and coordinate on a plan to raise more funds from women athlete alumnae -- perhaps coinciding with a championship anniversary. This is a win-win partnership; the development office gets to reach out to an untapped donor market, and the athletics department gets resources and assistance in connecting with alumnae.