Title IX of the Education Amendments of 1972 (“Title IX”) and its implementing regulations provide, among other things, that schools that receive federal funds must provide equal athletic opportunities for both sexes. The Office of Civil Rights (“OCR”) uses a three-part test to assess whether an institution is effectively accommodating the athletic interests and abilities of its students to the extent necessary to provide equal athletic opportunities. If an institution meets any of the three parts of the test, it can demonstrate compliance with Title IX:
Part One applies when athletic opportunities are provided to male and female students in proportion to their respective enrollments; Part Two applies when one sex is underrepresented, yet the institution can show a history or practice of program expansion for the underrepresented sex; and Part Three applies when one sex is underrepresented and the institution cannot show a history or program of expansion, yet can demonstrate that the interests and abilities of the underrepresented sex have been fully and effectively accommodated by the present program.
In 2005, OCR issued guidance on Part Three, which allowed schools to demonstrate compliance based on responses to a single survey conducted by the school. On April 20, 2010, however, OCR rescinded the 2005 guidance and issued new guidance on Part Three. This revised guidance is available by clicking here. Under the revised guidance, a school may no longer demonstrate compliance based only on survey results. Instead, OCR now requires schools to review multiple indicators to demonstrate compliance under Part Three, including survey responses, interviews with students, opinions of coaches and administrators, and other objective data regarding participation in athletics.