Survey Says . . . A Critical Analysis of the New Title IX Policy and a Proposal for Reform

• Author: Erin E. Buzuvis
• Position: Visiting Professor, University of Iowa College of Law
• Pages: 01

Erin E. Buzuvis: Visiting Professor, University of Iowa College of Law. J.D., 2001, Cornell Law School. Thanks to Stephanos Bibas, Christina Bohannan, Bethany Berger, Bill Buss, Jill Gaulding, Kristine Newhall, Katie Porter, Ethan Stone, Laura Weinrib, and Tung Yin for ideas, feedback, and helpful comments. Page 823

More than thirty years have passed since Congress enacted Title IX, the statute prohibiting sex discrimination by schools, colleges, and universities that receive federal funding.¹ In that time, Congress has confirmed²-and reconfirmed³-the statute's application to college athletic programs, and the Supreme Court has strengthened the statute's enforcement by construing a private right of action for both injunctive relief⁴ and, in certain cases, money damages.⁵ Bolstered by these measures, Title IX is duly credited for increasing the number of athletic opportunities for women and girls.⁶

But at the college level, female athletes still have far fewer opportunities to participate in athletics relative to their male peers.⁷ At most colleges and universities, the percentage of student athletes who are female is lower than the percentage of female college students.⁸ One reason for this is that Title Page 824IX and its implementing regulations do not mandate that universities attain substantial proportionality.⁹ In fact, the regulatory compliance policy that the Office for Civil Rights ("OCR")¹⁰ has administered since 1979 allows for three separate and alternative measures (or "prongs") for complying with Title IX. Universities' efforts to attain compliance under the proportionality prong are often stymied by budget constraints, perceived or otherwise,¹¹ that prevent universities from achieving proportionality by simply adding opportunities for women. And while universities could alternatively attain proportionality by capping or reducing athletic opportunities for men,¹² this approach is unpopular among male athletes, their coaches, and their supporters.¹³ Page 825

This double bind causes many colleges and universities to strive for compliance with the second or third compliance prongs instead of proportionality. Under the second prong, a university can satisfy its Title IX compliance obligations-notwithstanding a disproportionate distribution of athletic opportunities-by showing a history and continuing practice of expanding athletic opportunities for women.¹⁴ Because it is impossible to show a continuing practice of expanding women's opportunities without eventually reaching a distribution of opportunities that complies with prong one, prong two is, by its terms, an interim measure of compliance.¹⁵

Prong three allows a university to justify its disparate distribution of athletic opportunities by demonstrating that it fully and effectively accommodates its female students' interests and abilities in athletics.¹⁶ But determining the extent to which women are interested in athletics is a complex problem. Social structures, including signals from universities that devalue women's sports as compared to men's, have influenced women's interests in athletics and are responsible, to some degree, for lack of athletic interest among women. As long as these social structures continue to relate to athletics in a gender-specific manner, it is impossible to isolate the extent to which women's interest in athletics is socially constructed. Under a theory of equality that accounts for the effect of these social structures (which I herein call "structuralist equality"), taking into account women's lack of interest in athletics relative to their male peers is ineffective and circular.

OCR and the federal courts have, to some extent, recognized that social structures, including colleges and universities, have constructed women's interests in sports and have been reluctant to make prong three an easy or Page 826 attractive compliance option.¹⁷ OCR and the courts include qualitative and subjective factors, such as athletic interest in women's sports generated outside the university, as relevant to the question of whether a university fully and effectively accommodates women's interests in athletics. This multi- faceted approach ratchets up the compliance bar under prong three. It also ensures that proportionality under prong one remains the only permanent compliance option subject to a qualitative formula that measures predictable factors within the institution's control. As a result, institutions seeking a truly "safe harbor"¹⁸ from liability unhappily view proportionality compliance as their only real, long-term option for complying with Title IX.¹⁹ However, when the regulated institutions complained that they were being compelled toward prong-one proportionality compliance, OCR espoused that the test was flexible and that the prongs were equally favored.²⁰ Confusion ensued.²¹

In 2005, OCR clarified prong three by allowing universities to administer surveys to their enrolled female students and rely on the results to demonstrate that women's interests-and as a result, prong three-are satisfied.²² While a university is obligated to expand its offerings to accommodate unmet interest that the survey reveals, the survey's methodology can make that outcome unlikely.²³ As a result, prong three compliance will not only be easier to attain, but from a university counsel's perspective, it will be a strong, reliable bulwark against enforcement actions Page 827 and lawsuits. In other words, interest-defined compliance will be a truly "equally favored" prong.

However, while the 2005 Clarification restores genuine flexibility to the three-prong test, it does so in disregard for, and at the expense of, the structuralist-equality concerns that courts have recognized. Without the more volatile, uncertain brand of immunity that the pre-2005 prong three offered, universities now have no regulatory incentive to strive for a more proportionate distribution of athletic opportunities. Instead, through their disparate offerings, they will continue to position women's athletics at the margins and contribute to society's perception of athletics as primarily masculine activities. This "antinormalization" of women's participation helps to negatively construct women's interests in sports.

Part I of this Article provides background on Title IX and its regulatory regime.²⁴ Part II describes and critiques the Model Survey²⁵ that institutions may now use under the 2005 Clarification.²⁶ Part III argues that the interest- survey policy is inherently inconsistent with the structuralist equality goals of Title IX. That Part describes how various social structures, including educational institutions and Title IX itself, have constructed women's interests in athletics by antinormalizing their athletic participation;²⁷ how the federal appellate courts and the three-prong policy itself espouse a version of Title IX rooted in structuralist equality;²⁸ and how the newly clarified version of the three-prong policy undermines this structuralist equality.²⁹

Part IV argues that repealing the 2005 Clarification and restoring the agency's former interpretation of the three-prong policy will not resolve the inherent tension between the three-prong policy and OCR's express desire to give universities a flexible test with more than one compliance endpoint.³⁰To resolve this tension, OCR has two choices. It could abandon the "flexibility" rhetoric and acknowledge that, to be consistent with the structuralist equality reflected in Title IX, prong three, like prong two, is only justified as an interim compliance measure. Or it could offer an alternative to proportionality compliance that is defined by an objective measure other than interest. This Article suggests that proportionate funding (as opposed to proportionate number of opportunities) would be an appropriate alternative "fourth prong" because it would require the Page 828 university to signal equal valuation of women's sports, mitigating the social forces that have...