Well, that's interesting. It's obviously good to have other ways to measure interest besides proportionality.

On the other hand, I gotta say that the words "web based survey" do not fill me with feelings of reliability and certainty. I think polling is a good idea; I would rather see them using time-tested methods. (If such really exist.)

I'd also note that the availability of item X can increase the interest in item X. Ask any marketer. This means... ah.

The goal "increase the number of women playing varsity sports at the college level" is not the same as the goal "provide varsity sports for all the women who currently want them."

As long as we're talking about meeting the interests of the student population re: athletic participation, please consider this: At the average Division I large state school, how many men played basketball or football in high school? Compare that to the number of positions available on the school's sports teams. We consider the needs of the male population of basketball players to be met by the one team, even if 200 men would like to play competitive basketball.

I'm all for reassessing Title IX, but I don't buy email surveys as an effective means of gauging the interests of college students. Not at all. There has to be a better way to reach the sample set.

My clients, the college coaches, and I have our hands full trying to stay involved in the news cycle but I couldn't let the Myles Brand item pass without remark. This is the same man who called for a summit with the USOC to discuss why men’s sports are disappearing – and then insisted that Title IX not be discussed at all during the meetings:
http://www.intermatwrestle.com/titleix/kocher/cael_force.aspx

The coaches have been trying to have a dialogue with the NCAA about Title IX for more than five years now and have been actively excluded at every turn. For Brand to now argue that there wasn’t enough discussion just staggers the imagination.

His complaint about the survey is just as bankrupt. Again, what easier, more accurate way could there be for a school to gauge a student’s interest in sports than by asking him or her? If schools can comply by “meeting interest,” as the law and Brand insist they can, then how shall they find out who is interested?

What’s especially galling about the NWLC’s complaint that the clarification was done behind closed doors is that that’s exactly how the three part test was implemented in the first place. Worse, the NWLC itself was behind those closed doors during a Democratic Administration helping the Department craft the wording of the test. This new clarification is simply allowing schools to comply by the rigged rules that the NWLC set up in the first place.

Brand shuts people up and then complains there's no conversation. Greenberger literally re-writes the rulebook to suit her own agenda and then whines when those rules are actually followed. Let me tell you something, that takes nerve.

doesn't the hypocrisy run both ways, Jim?

I assume that when the closed-door rules were implemented in the first place, you objected loudly that the voice of the people you represent was excluded. Now that you're in power, you turn around and do the same thing?

By the way: Did you (or anyone) litigate any APA-based claims after the three-part test was instituted?

It will also be interesting to see if schools administer this survey to all students, males and females. The Department of Education recommends surveying all fulltime undergrads. Title IX interpretation considers the interests (met or unmet) of the "overrepresented gender" irrelevant. But the public might not.

There are 30 sports listed on the model survey. One is hardpressed to find a sport on the list that is not played by both sexes today. What happens if the surveys show that the majority of unmet interest is that of males? Will schools find this kind of information inconvenient?

Watch for the people who advocate suppressing that type of information.

When the three part test was first instituted, it was done by skirting federal rule-making procedures – in other words, creating a whole new method of compliance without public debate or comment. By contrast, the Department in this case has merely clarified one of those existing tests – a procedure that does not require the same rule-making process or public comment period under federal administrative law. The third prong was vague before – it said that schools could comply by “meeting interest” – but schools were uncertain how and were often sued when they tried. The prong is clear now – schools can measure interest by asking who is interested. That’s the whole point of a clarification. Mind you, the NWLC and WSF have insisted all along that they have no problem with schools complying by meeting interest. Now that it is a working reality, however, they suddenly aren’t so smug about it.

What’s more, the idea that there was no public discussion about compliance problems or about interest surveys in particular is ludicrous. The coaches have been pressing the case for more than ten years now and various schools have been using their own interest surveys for some time. For their part, Julie Foudy et al have shouted to the rafters for the last 36 months in opposition to any and all reform proposals put forward. Believe me, no one is in doubt about their opinion on the matter. But let’s hear your answer, Ted: is there a better way to determine whether a student is interested in participating in sports than by asking her?

On your legal question, yes, the coaches have had a lawsuit in federal court since ’02 based in part on the unlawful way the three-part test was implemented. That remains the coaches’ position and they would like to see the whole three part test thrown out. But in the meantime, if schools are going to have to abide by a rigged set of rules, let’s at least make it clear how they can go about it.

I should start by disclaiming any expertise on the subject -- I'm legitimately interested in different views on this whole thing because I really don't know much myself.

I thought that "meeting interest" was already a "working reality." The third prong has been around for awhile (how long?), and I've heard that around 70% complied using that prong. Is that wrong?

If we're merely clarifying the third prong so that everyone knows what the rules are, that's great. But if it's really just clarifying, is it really an "earthquake"?

And honestly, do you really think this new set of rules is just a "clarification"? Does it really do nothing to affect the strength (or cruelty) of the law? If your employment position makes you unable to answer, that's fine.

As far as the openness debate... yes, there's been debate in the past about it. The particular absurdity of this thing though is just that we had the debate two years ago, and the reformers LOST the public debate, and Paige-Bush backed down.

But then they just waited (till after the election) and snuck the change in. On a Friday afternoon (did you ever see that episode of the West Wing?).

If it's really a good idea, why all the cloak-and-dagger maneuvering? Why not have a notice and comment period, fight and win in the open? (And yes, that should have gone for the original implementation of the three-part test as well.)

To answer your question: Is there a better way to measure interest?

Oh, I really don't know -- again, this week is really about the first time I've thought seriously about Title IX, so I don't know what other options are even out there.

I'm at least open to the possibility that scenarios exist like the Illinois-volleyball one described in Brennan's column this morning. (But see the Sports Law Blog for a good argument to the contrary.) If there's a reasonable possibility that situations like that exist, then we probably shouldn't rely solely on surveys.

Which is all to say: I'm at least open to the argument that current expressions of interest are themselves a function of some history of discrimination. I understand that you are pretty deeply opposed to that argument. I think it's complicated and reasonably debateable.

Which is also to say: I'm open to all of the chicken-and-egg arguments that come up in all forms of affirmative action, not just Title IX. Again, I understand that you are deeply opposed to those arguments. And given their empirical and theoretical complexity, it will be pretty darn hard for either of us to make much headway with the other. So we may be stuck there, which, in my view, is fine -- it's a reasonable disagreement.

Do you by any chance know the name of the '02 case brought by the coaches?

Also (and sorry to ask so many questions) but can you tell me what is so bad about the three-part test? You think that requiring "strict proportionality" is a bad idea, but isn't compliance by "meeting interest" a good idea? And if that's one way to comply, what's the problem?

"When the three part test was first instituted, it was done by skirting federal rule-making procedures – in other words, creating a whole new method of compliance without public debate or comment."

I believe that's false.

The three-part test was originally put in place in 1979. 44 Fed. Reg. 71,413-71,423 (1979). That rule-making process was conducted as a "legislative rule" under the APA. Therefore, it was done after a notice and comment period. As the First Circuit said, the OCR implemented the three-part test "[a]fter considering a large number of public comments."

Perhaps you are talking about the January 1996 OCR "Clarification Memorandum."

Yes?

And even the 1996 Clarification was made after notice and comment.

"on September 20, 1995, OCR circulated to over 4500 interested parties a draft of the proposed Clarification, soliciting comments about whether the document provided sufficient clarity to assist institutions in their efforts to comply with Title IX."

and it apparently heard from both sides.

"OCR appreciates the efforts of the more than 200 individuals who commented on the draft of the Clarification. In addition to providing specific comments regarding clarity, some parties suggested that the Clarification did not go far enough in protecting women's sports. Others, by contrast, suggested that the Clarification, or the Policy Interpretation itself, provided more protection for women's sports than intended by Title IX. "

http://www.ed.gov/about/offices/list/ocr/docs/clarific.html