Executive Summary
While every legal authority has held that this survey practice cannot be made the sole litmus test for compliance under Prong 3 of Title IX, the letter sets up just a situation, totally reversing the current standard. The letter states that only if the �model survey� is not administered will it look at the following other factors which the courts have maintained must all be examined:

• Requests for the addition of a varsity team (even if no club team currently exists) or elevation of an existing club sport to varsity status
• Participation in club or intramural sports
• Participation in high school sports, amateur athletic associations and community sports leagues that operate in areas from which the institution draws its students
• Intercollegiate varsity participation rates, as identified by national and regional intercollegiate sports governing bodies, in the institution�s competitive region

Dependence on a single survey methodology also cancels the Department of Education�s own 1979 Policy Interpretation, which states that schools are permitted to determine the athletic interests and abilities of students by nondiscriminatory methods of their choosing, provided that all of the following standards are met:

a. The process take into account the nationally increasing levels of women�s interests and abilities;

b. The methods of determining interest and ability do not disadvantage the members of an underrepresented sex;

c. The methods of determining ability take into account team performance records; and

d. The methods are responsive to the expressed interests of students capable of intercollegiate competition who are members of an underrepresented sex

The letter and �model survey� also conflict with the department�s Title IX Athletics Investigator�s Manual , which instructs investigating officials to consider other factors reflecting interests and abilities, such as sports programs at �feeder� schools and community and regional sports programs. More importantly, the investigator�s manual states that a student survey may be a remedial tool to be used after a determination that an institution has failed the third prong; a survey is not utilized to determine compliance in the first instance, however. While a student survey may be part of a remedy to determine what sports to add when an institution�s current program fails Prong Three, it is not a proper test upon which to base compliance.

References

1 Authored by Nancy Hogshead-Makar, Professor of Law, Florida Coastal School of Law, Olympic Gold Medalist Swimmer and Donna Lopiano, Ph.D., Chief Executive Officer, Women�s Sports Foundation. First published as commentary on InsideHigherEd.com, March 24, 2005:
(http://www.insidehighered.com/views/2005/03/24/lopiano)
2 Full text located at:
3 Cohen v. Brown University, 101 F.3d 155 (1st Cir. 1996) at 198-179.
4 1996 OCR Clarification of Intercollegiate Athletics Policy Guidance; The Three-Part Test, available at http://www.ed.gov.offices/OCR/docs/clarific.html.
5 Department of Education�s Title IX Athletics Investigator�s Manual (1990),
6 This point has been made by, for example, Donald Sabo, Ph.D., Professor of Sociology, D'Youville College, Director of the Center for Research on Physical Activity, Sport & Health. Former President, North American Society for the Sociology of Sport. Professor Sabo was an expert witness on research methodology for Cohen v. Brown University, and has extensively analyzed the methodological problems with such surveys.
7 Cohen v. Brown University, 879 F.Supp. 185 at 206
8 Id. at 207
9 OCR will determine whether there is sufficient unmet interest among the institution's students who are members of the underrepresented sex to sustain an intercollegiate team. OCR will look for interest by the underrepresented sex as expressed through the following indicators, among others:

• requests by students and admitted students that a particular sport be added;
• requests that an existing club sport be elevated to intercollegiate team status;
• participation in particular club or intramural sports;
• interviews with students, admitted students, coaches, administrators and others regarding interest in particular sports;
• results of questionnaires of students and admitted students regarding interests in particular sports; and
• participation in particular in interscholastic sports by admitted students

In addition, OCR will look at participation rates in sports in high schools

amateur athletic associations, and community sports leagues that operate in areas from which the institution draws its students in order to ascertain likely interest and ability of its students and admitted students in particular sport(s).5 For example, where OCR's investigation finds that a substantial number of high schools from the relevant region offer a particular sport which the institution does not offer for the underrepresented sex, OCR will ask the institution to provide a basis for any assertion that its students and admitted students are not interested in playing that sport. OCR may also interview students, admitted students, coaches, and others regarding interest in that sport.

An institution's evaluation of interest should be done periodically so that the institution can identify in a timely and responsive manner any developing interests and abilities of the underrepresented sex. The evaluation should also take into account sports played in the high schools and communities from which the institution draws its students both as an indication of possible interest on campus and to permit the institution to plan to meet the interests of admitted students of the underrepresented sex.�

10 44 Fed. Reg. at 71, 417
11 Valerie M. Bonnette & Lamar Daniel, Department of Education, Title IX Athletics Investigator�s Manual (1990)
12 Id.
13 Id. at 27 "[a] survey or assessment may be required as a part of a remedy when OCR has concluded that an institution's current program does not equally effectively accommodate the interests and abilities of students."

(from the Womens Sports Foundation)

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