[OCR-00019]

#### OFFICE FOR CIVIL RIGHTSTHE ASSISTANT SECRETARY

#### July 23, 1998

Dear Colleague:

The Office for Civil Rights (OCR) of the U.S. Department of  Education is currently investigating twenty-five complaints which  allege discrimination in the awarding of athletic scholarships in  intercollegiate athletics programs. Your institution is among  these complaints. 

OCR is investigating these complaints under the jurisdiction of  Title IX of the Education Amendments of 1972 (Title IX) which  prohibits discrimination on the basis of sex in any education  program or activity, including the athletic program, which  receives Federal funds. Regarding the award of intercollegiate  athletics scholarships, Title IX requires that such scholarships  be made available to the separate men's and women's athletic  programs in a manner which is "substantially proportionate" to the  participation rates of male and female athletes.

In response to a specific request for guidance on this matter, our  office recently issued a written response to the General Counsel  of Bowling Green State University. I am forwarding a copy of this  letter for your reference. This letter clarifies the coverage of  Title IX and its regulations as they apply to both academic and  athletic programs and discusses specifically the 1979  Intercollegiate Athletics Policy Interpretation of the  "substantially proportionate" provision of Title IX as it relates  to the funding of athletic scholarships for men's and women's  intercollegiate athletics programs. 

If OCR staff may be of further assistance, please do not hesitate  to contact Dr. Mary Frances O'Shea, national Coordinator for Title  IX Athletics, at (312)886-8434, or your local OCR office. We look  forward to working cooperatively with you.   Sincerely,  /s/ Norma V. Cantú  Assistant Secretary Office for Civil Rights  Enclosure

[OCR-00020]

#### 	UNITED STATES DEPARTMENT OF EDUCATION  	      WASHINGTON, D.C.  20202-        	                                     July 23, 1998

Ms. Nancy S. Footer General Counsel  Bowling Green State University  308 McFall Center  Bowling Green, Ohio 43403-0010

Dear Ms. Footer:  

This is in response to your letter requesting guidance in meeting  the requirements of Title IX, specifically as it relates to the  equitable apportionment of athletic financial aid. Please accept  my apology for the delay in responding. As you know, the Office  for Civil Rights (OCR) enforces Title IX of the Education  Amendments of 1972, 20 U.S.C. ? 1682, which prohibits  discrimination on the basis of sex in education programs and activities.

 The regulation implementing Title IX and the Department's  Intercollegiate Athletics Policy Interpretation published in      1979 -- both of which followed publication for notice and the  receipt, review, and consideration of extensive comments --  specifically address intercollegiate athletics. You have asked us  to provide clarification regarding how educational institutions  can provide intercollegiate athletes with nondiscriminatory  opportunities to receive athletic financial aid. Under the Policy  Interpretation, the equitable apportioning of a college's  intercollegiate athletics scholarship fund for the separate  budgets of its men's and women's programs -- which Title IX  permits to be segregated -- requires that the total amounts of  scholarship aid made available to the two budgets are  "substantially proportionate" to the participation rates of male  and female athletes. 44 Fed. Reg. 71413, 71415 (1979)).

In responding, I wish (1) to clarify the coverage of Title IX and  its regulations as they apply to both academic and athletic  programs, and (2) to provide specific guidance about the existing  standards that have guided the enforcement of Title IX in the area  of athletic financial aid, particularly the Policy  Interpretation's "substantially proportionate" provision as it  relates to a college's funding of the athletic scholarships  budgets for its men's and women's teams. At the outset, I want to  clarify that, wholly apart from any obligation with respect to  scholarships, an institution with an intercollegiate athletics  program has an independent Title IX obligation to provide its  students with nondiscriminatory athletic participation  opportunities. The scope of that separate obligation is not  addressed in this letter, but was addressed in a Clarification  issued on January 16, 1996.

Title IX Coverage: Athletics versus Academic Programs

Title IX is an anti-discrimination statute that prohibits  discrimination on the basis of sex in any education program or  activity receiving federal financial assistance, including  athletic programs. Thus, in both academics and athletics, Title IX  guarantees that all students, regardless of gender, have equitable  opportunities to participate in the education program. This  guarantee does not impose quotas based on gender, either in  classrooms or in athletic programs. Indeed, the imposition of any  such strict numerical requirement concerning students would be  inconsistent with Title IX itself, which is designed to protect  the rights of all students and to provide equitable opportunities  for all students.

Additionally, Title IX recognizes the uniqueness of  intercollegiate athletics by permitting a college or university to  have separate athletic programs, and teams, for men and women.  This allows colleges and universities to allocate athletic  opportunities and benefits on the basis of sex. Because of this  unique circumstance, arguments that OCR's athletics compliance  standards create quotas are misplaced. In contrast to other  antidiscrimination statutes, Title IX compliance cannot be  determined simply on the basis of whether an institution makes  sex-specific decisions, because invariably they do. Accordingly,  the statute instead requires institutions to provide equitable  opportunities to both male and female athletes in all aspects of  its two separate athletic programs. As the court in the Brown  University case stated, "[i]n this unique context, Title IX  operates to ensure that the gender-segregated allocation of  athletic opportunities does not disadvantage either gender. Rather  than create a quota or preference, this unavoidable  gender-conscious comparison merely provides for the allocation of  athletic resources and participation opportunities between the  sexes in a non-discriminatory manner." Cohen v. Brown University,  101 F.3d 155, 177 (1st Cir. 1996), cert. denied, 117 S. Ct. 1469  (1997). The remainder of this letter addresses the application of  Title IX only to athletic scholarships.

Athletics: Scholarship Requirements

With regard to athletic financial assistance, the regulations  promulgated under Title IX provide that, when a college or  university awards athletic scholarships, these scholarship awards  must be granted to "members of each sex in proportion to the  number of students of each sex participating in... intercollegiate  athletics." 34 C.F.R. 106.37(c). Since 1979, OCR has interpreted  this regulation in conformity with its published "Policy  Interpretation: Title IX and Intercollegiate Athletics," 44 Fed.  Reg. 71413 (December 11, 1979). The Policy Interpretation does not  require colleges to grant the same number of scholarships to men  and women, nor does it require that individual scholarships be of  equal value. What it does require is that, at a particular college  or university, "the total amount of scholarship aid made available  to men and women must be substantially proportionate to their  [overall] participation rates" at that institution. Id. at 71415.  It is important to note that the Policy Interpretation only  applies to teams that regularly compete in varsity competition.  Id. at 71413 and n. 1.

Under the Policy Interpretation, OCR conducts a "financial  comparison to determine whether proportionately equal amounts of  financial assistance (scholarship aid) are available to men's and  women's athletic programs." Id. The Policy Interpretation goes on  to state that "[i]nstitutions may be found in compliance if this  comparison results in substantially equal amounts or if a  disparity can be explained by adjustments to take into account  legitimate nondiscriminatory factors." Id.

A "disparity" in awarding athletic financial assistance refers to  the difference between the aggregate amount of money athletes of  one sex received in one year, and the amount they would have  received if their share of the entire annual budget for athletic  scholarships had been awarded in proportion to their participation  rates. Thus, for example, if men account for 60% of a school's  intercollegiate athletes, the Policy Interpretation presumes that  -- absent legitimate nondiscriminatory factors that may cause a  disparity -- the men's athletic program will receive approximately  60% of the entire annual scholarship budget and the women's  athletic program will receive approximately 40% of those funds.  This presumption reflects the fact that colleges typically  allocate scholarship funds among their athletic teams, and that  such teams are expressly segregated by sex. Colleges' allocation  of the scholarship budget among teams, therefore, is invariably  sex-based, in the sense that an allocation to a particular team  necessarily benefits one sex to the exclusion of the other. See  Brown, 101 F.3d at 177.  Where, as here, disparate treatment is  inevitable and a college's allocation of scholarship funds is "at  the discretion of the institution," Brown, 101 F.3d at 177, the  statute's nondiscrimination requirement obliges colleges to ensure  that men's and women's separate activities receive equitable  treatment. Cf. United States v. Virginia, 518 U.S. 515, 554  (1996).

Nevertheless, in keeping with the Policy Interpretation's  allowance for disparities from "substantially proportionate"  awards to the men's and women's programs based on legitimate  nondiscriminatory factors, OCR judges each matter on a  case-by-case basis with due regard for the unique factual  situation presented by each case. For example, OCR recognizes that  disparities may be explained by actions taken to promote athletic  program development, and by differences between in-state and  out-of-state tuition at public colleges. 44 Fed. Reg. at 71415.  Disparities might also be explained, for example, by legitimate  efforts undertaken to comply with Title IX requirements, such as  participation requirements. See, e.g., Gonyo v. Drake Univ., 879  F. Supp. 1000, 1005-06 (S.D. Iowa 1995). Similarly, disparities  may be explained by unexpected fluctuations in the participation  rates of males and females. For example, a disparity may be  explained if an athlete who had accepted an athletic scholarship  decided at the last minute to enroll at another school. It is  important to note that it is not enough for a college or  university merely to assert a nondiscriminatory justification.  Instead, it will be required to demonstrate that its asserted  rationale is in fact reasonable and does not reflect underlying  discrimination. For instance, if a college consistently awards a  greater number of out-of-state scholarships to men, it may be  required to demonstrate that this does not reflect discriminatory  recruitment practices. Similarly, if a university asserts the  phase-in of scholarships for a new team as a justification for a  disparity, the university may be required to demonstrate that the  time frame for phasing-in of scholarships is reasonable in light  of college sports practices to aggressively recruit athletes to  build start-up teams quickly.

In order to ensure equity for athletes of both sexes, the test for  determining whether the two scholarship budgets are "substantially  proportionate" to the respective participation rates of athletes  of each sex necessarily has a high threshold. The Policy  Interpretation does not, however, require colleges to achieve  exact proportionality down to the last dollar. The "substantially  proportionate" test permits a small variance from exact  proportionality. OCR recognizes that, in practice, some leeway is  necessary to avoid requiring colleges to unreasonably fine-tune  their scholarship budgets.

When evaluating each scholarship program on a case-by-case basis,  OCR's first step will be to adjust any disparity to take into  account all the legitimate nondiscriminatory reasons provided by  the college, such as the extra costs for out-of-state tuition  discussed earlier. If any unexplained disparity in the scholarship  budget for athletes of either gender is 1% or less for the entire  budget for athletic scholarships, there will be a strong  presumption that such a disparity is reasonable and based on  legitimate and nondiscriminatory factors. Conversely, there will  be a strong presumption that an unexplained disparity of more than  1% is in violation of the "substantially proportionate"  requirement.

Thus, for example, if men are 60% of the athletes, OCR would  expect that the men's athletic scholarship budget would be within  59%-61% of the total budget for athletic scholarships for all  athletes, after accounting for legitimate nondiscriminatory  reasons for any larger disparity. Of course, OCR will continue to  judge each case in terms of its particular facts. For example, at  those colleges where 1% of the entire athletic scholarship budget  is less than the value of one full scholarship, OCR will presume  that a disparity of up to the value of one full scholarship is  equitable and nondiscriminatory. On the other hand, even if an  institution consistently has less than a 1% disparity, the  presumption of compliance with Title IX might still be rebutted  if, for example, there is direct evidence of discriminatory intent.

 OCR recognizes that there has been some confusion in the past with  respect to the Title IX compliance standards for scholarships.  OCR's 1990 Title IX Investigator's Manual correctly stated that  one would expect proportionality in the awarding of scholarships,  absent a legitimate, nondiscriminatory justification. But that  Manual also indicated that compliance with the "substantially  proportionate" test could depend, in part, upon certain  statistical tests. In some cases, application of such a  statistical test would result in a determination of compliance  despite the existence of a disparity as large as 3-5%.

 We would like to clarify that use of such statistical tests is not  appropriate in these circumstances. Those tests, which are used in  some other discrimination contexts to determine whether the  disparities in the allocation of benefits to different groups are  the result of chance, are inapposite in the athletic scholarship  context because a college has direct control over its allocation  of financial aid to men's and women's teams, and because such  decisions necessarily are sex-based in the sense that an  allocation to a particular team will affect only one sex. See  Brown, 101 F.3d at 176-78 (explaining why college athletics  "presents a distinctly different situation from admissions and  employment," and why athletics requires a different analysis than  that used in such other contexts "in order to determine the  existence vel non of discrimination"). In the typical case where  aid is expressly allocated among sex-segregated teams, chance  simply is not a possible explanation for disproportionate aid to  one sex. Where a college does not make a substantially  proportionate allocation to sex-segregated teams, the burden  should be on the college to provide legitimate, nondiscriminatory  reasons for the disproportionate allocation. Therefore, the use of  statistical tests will not be helpful in determining whether a  disparity in the allocations for the two separate athletic  scholarship budgets is nondiscriminatory.

While a statistical test is not relevant in determining  discrimination, the confusion caused by the manual's inclusion of  a statistical test resulted in misunderstandings. Therefore, OCR  is providing this clarification regarding the substantial  proportionality provision found in the 1979 Policy Interpretation  to confirm the substance of a longstanding standard. In order to  ensure full understanding, OCR will apply the presumptions and  case-by-case analysis described in this letter for the 1998-99  academic year. OCR strongly encourages recipients to award  athletic financial assistance to women athletes in the 1997-98  academic year consistent with this policy clarification, both as a  matter of fairness and in order to ensure that they are moving  towards the policy clarification stated in this letter.

I trust that this letter responds to the questions the University  has regarding the "substantially proportionate" provision of the  Policy Interpretation in the context of the funding for an  institution's two separate athletic scholarship budgets for male  and female athletes. I am sending a copy of this letter as  technical assistance to the complainants and the other 24  recipients also currently involved with OCR on the issue of  awarding athletic financial assistance. We will be in contact with  you shortly to continue to work with the University regarding this  matter and to discuss other points raised in your letter. If you  have any questions regarding this letter, please contact me at  (312) 886-8387.

Sincerely yours,  /s/ Dr. Mary Frances O'Shea  National Coordinator  for Title IX Athletics  

Top