Federal Register, Vol.  44, No. 239 - Tuesday, Dec. 11, 1979

**Federal Register **
**DEPARTMENT OF HEALTH,  EDUCATION, AND WELFARE**
**Office for Civil  Rights**
**Office of the  Secretary**
**45 CFR Part 86**
**Title IX of the Education  Amendments of 1972; a Policy Interpretation; Title IX and Intercollegiate  Athletics**
**AGENCY:**
**ACTION:**
**SUMMARY:**
**EFFECTIVE DATE:**
**FOR FURTHER  INFORMATION CONTACT:**
**SUPPLEMENTARY  INFORMATION:**
**1. Legal Background**
*A. The Statute*
- No  person in the United States shall, on the basis of sex, be excluded from  participation in, be denied the benefits of, or be subjected to discrimination  under any education program or activity receiving Federal financial assistance.  

Section 844 of the  Education Amendments of 1974 further provides:

- The  Secretary of [of HEW] shall prepare and publish * * * proposed regulations  implementing the provisions of Title IX of the Education Amendments of 1972  relating to the prohibition of sex discrimination in federally assisted  education programs which shall include with respect to intercollegiate athletic  activities reasonable provisions considering the nature of particular sports.

*B. The Regulation*

The regulation  implementing Title IX is set forth, in pertinent part, in the Policy  Interpretation below. It was signed by President Ford on May 27, 1975, and  submitted to the Congress for review pursuant to Section 431(d)(1) of the  General Education Provisions Act (GEPA).

During this review,  the House Subcommittee on Postsecondary Education held hearings on a resolution  disapproving the regulation. The Congress did not disapprove the regulation  within the 45 days allowed under GEPA, and it therefore became effective on  July 21, 1975.

Subsequent hearings  were held in the Senate Subcommittee on Education on a bill to exclude revenues  produced by sports to the extent they are used to pay the costs of those  sports. The Committee, however, took no action on this bill.

The regulation  established a three year transition period to give institutions time to comply  with its equal athletic opportunity requirements. That transition period  expired on July 21, 1978.

**II. Purpose of Policy  Interpretation**

By the end of July  1978, the Department had received nearly 100 complaints alleging discrimination  in athletics against more than 50 institutions of higher education. In  attempting to investigate these complaints, and to answer questions from the  university community, the Department determined that it should provide further  guidance on what constitutes compliance with the law. Accordingly, this Policy  Interpretation explains the regulation so as to provide a framework within  which the complaints can be resolved, and to provide institutions of higher  education with additional guidance on the requirements for compliance with  Title IX in intercollegiate athletic programs.

**III. Scope of  Application**

This Policy  Interpretation is designed specifically for intercollegiate athletics. However,  its general principles will often apply to club, intramural, and  interscholastic athletic programs, which are also covered by regulation.1 Accordingly, the Policy  Interpretation may be used for guidance by the administrators of such programs  when appropriate.

This policy  interpretation applies to any public or private institution, person or other  entity that operates an educational program or activity which receives or  benefits from financial assistance authorized or extended under a law  administered by the Department. This includes educational institutions whose  students participate in HEW funded or guaranteed student loan or assistance programs.  For further information see definition of "recipient" in Section 86.2  of the Title IX regulation.

**IV. Summary of Final  Policy Interpretation**

The final Policy  Interpretation clarifies the meaning of "equal opportunity" in  intercollegiate athletics. It explains the factors and standards set out in the  law and regulation which the Department will consider in determining whether an  institution's intercollegiate athletics program complies with the law and  regulations. It also provides guidance to assist institutions in determining  whether any disparities which may exist between men's and women's programs are  justifiable and nondiscriminatory. The Policy Interpretation is divided into  three sections:

- Compliance in Financial       Assistance (Scholarships) Based on Athletic Ability:  Pursuant to the regulation, the governing principle in       this area is that all such assistance should be available on a       substantially proportional basis to the number of male and female       participants in the institution's athletic program.
- Compliance in Other Program       Areas (Equipment and supplies; games and practice times; travel and per       diem, coaching and academic tutoring; assignment and compensation of       coaches and tutors; locker rooms, and practice and competitive facilities;       medical and training facilities; housing and dining facilities; publicity;       recruitment; and support services):  Pursuant to the regulation, the governing principle is that male and       female athletes should receive equivalent treatment, benefits, and       opportunities.
- Compliance in Meeting the       Interests and Abilities of Male and Female Students:  Pursuant to the regulation, the governing principle in       this area is that the athletic interests and abilities of male and female       students must be equally effectively accommodated.

**V. Major Changes to  Proposed Policy Interpretation**

The final Policy  Interpretation has been revised from the one published in proposed form on  December 11, 1978. The proposed Policy Interpretation was based on a two-part  approach. Part I addressed equal opportunity for participants in athletic  programs. It required the elimination of discrimination in financial support  and other benefits and opportunities in an institution's existing athletic  program. Institutions could establish a presumption of compliance if they could  demonstrate that:

- "Average per capita"       expenditures for male and female athletes were substantially equal in the       area of "readily financially measurable" benefits and       opportunities or, if not, that any disparities were the result of       nondiscriminatory factors, and
- Benefits and opportunities for       male and female athletes, in areas which are not financially measurable,       "were comparable."

Part II of the  proposed Policy Interpretation addressed an institution's obligation to  accommodate effectively the athletic interests and abilities of women as well  as men on a continuing basis. lt required an institution either:

- To follow a policy of development       of its women's athletic program to provide the participation and       competition opportunities needed to accommodate the growing interests and       abilities of women, or
- To demonstrate that it was       effectively (and equally) accommodating the athletic interests and       abilities of students, particularly as the interests and abilities of       women students developed.

While the basic  considerations of equal opportunity remain, the final Policy Interpretation  sets forth the factors that will be examined to determine an institution's  actual, as opposed to presumed, compliance with Title IX in the area of  intercollegiate athletics.

The final Policy  Interpretation does not contain a separate section on institutions' future  responsibilities. However, institutions remain obligated by the Title IX  regulation to accommodate effectively the interests and abilities of male and  female students with regard to the selection of sports and levels of  competition available. ln most cases, this will entail development of athletic  programs that substantially expand opportunities for women to participate and  compete at all levels.

The major reasons for  the change in approach are as follows:

(1) Institutions and  representatives of athletic program participants expressed a need for more  definitive guidance on what constituted compliance than the discussion of a  presumption of compliance provided. Consequently the final Policy  Interpretation explains the meaning of "equal athletic opportunity"  in such a way as to facilitate an assessment of compliance.

(2) Many comments  reflected a serious misunderstanding of the presumption of compliance. Most  institutions based objections to the proposed Policy Interpretation in part on  the assumption that failure to provide compelling justifications for disparities  in per capita expenditures would have automatically resulted in a finding of  noncompliance. In fact, such a failure would only have deprived an institution  of the benefit of the presumption that it was in compliance with the law. The  Department would still have had the burden of demonstrating that the  institution was actually engaged in unlawful discrimination. Since the purpose  of issuing a policy interpretation was to clarify the regulation, the  Department has determined that the approach of stating actual compliance  factors would be more useful to all concerned.

(3) The Department has  concluded that purely financial measures such as the per capita test do not in  themselves offer conclusive documentation of discrimination, except where the  benefit or opportunity under review, like a scholarship, is itself financial in  nature. Consequently, in the final Policy Interpretation, the Department has  detailed the factors to be considered in assessing actual compliance. While per  capita breakdowns and other devices to examine expenditure patterns will be  used as tools of analysis in the Department's investigative process, it is  achievement of "equal opportunity" for which recipients are  responsible and to which the final Policy Interpretation is addressed.

A description of the  comments received, and other information obtained through the  comment/consultation process, with a description of Departmental action in  response to the major points raised, is set forth at Appendix "B" to  this document.

**VI. Historic Patterns of Intercollegiate  Athletics Program Development and Operations**

In its proposed Policy  Interpretation of December 11, 1978, the Department published a summary of  historic patterns affecting the relative status of men's and women's athletic  programs. The Department has modified that summary to reflect additional  information obtained during the comment and consultation process. The summary  is set forth at Appendix A to this document.

**VII. The Policy  Interpretation**

This Policy  Interpretation clarifies the obligations which recipients of Federal aid have  under Title IX to provide equal opportunities in athletic programs. In  particular, this Policy Interpretation provides a means to assess an  institution's compliance with the equal opportunity requirements of the  regulation which are set forth at 45 CFR 88.37(c) and 88.41(c).

*A. Athletic Financial  Assistance (Scholarships)*

1. *The Regulation*—Section  86.37(c) of the regulation provides:

[Institutions] must provide reasonable opportunities for such  award [of financial assistance] for member of each sex in proportion to the  number of students of each sex participating in * * * inter-collegiate  athletics.2

2. *The Policy*—The  Department will examine compliance with this provision of the regulation  primarily by means of a financial comparison to determine whether  proportionately equal amounts of financial assistance (scholarship aid) are  available to men's and women's athletic programs. The Department will measure  compliance with this standard by dividing the amounts of aid available for the  members of each sex by the numbers of male or female participants in the  athletic program and comparing the results. Institutions may be found in  compliance if this comparison results in substantially equal amounts or if a  resulting disparity can be explained by adjustments to take into account  legitimate, nondiscriminatory factors. Two such factors are:

a. At public institutions,  the higher costs of tuition for students from out-of-state may in some years be  unevenly distributed between men's and women's programs. These differences will  be considered nondiscriminatory if they are not the result of policies or  practices which disproportionately limit the availability of out-of-state  scholarships to either men or women.

b. An institution may  make reasonable professional decisions concerning the awards most appropriate  for program development. For example, team development initially may require  spreading scholarships over as much as a full generation (four years) of  student athletes. This may result in the award of fewer scholarships in the  first few years than would be necessary to create proportionality between male  and female athletes.

3. *Application of  the Policy*—a. This section does not require a proportionate number of  scholarships for men and women or individual scholarships of equal dollar  value. It does mean that the total amount of scholarship aid made available to  men and women must be substantially proportionate to their participation rates.

b. When financial  assistance is provided in forms other than grants, the distribution of  non-grant assistance will also be compared to determine whether equivalent  benefits are proportionately available to male and female athletes. A  disproportionate amount of work-related aid or loans in the assistance made  available to the members of one sex, for example, could constitute a violation  of Title IX.

*Definition*—For  purposes of examining compliance with this Section, the participants will be  defined as those athletes:

a. Who are receiving  the institutionally-sponsored support normally provided to athletes competing  at the institution involved, e.g., coaching, equipment, medical and training  room services, on a regular basis during a sport's season; and

b. Who are  participating in organized practice sessions and other team meetings and  activities on a regular basis during a sport's season: and

c. Who are listed on the  eligibility or squad lists maintained for each sport, or

d. Who, because of  injury, cannot meet a, b, or c above but continue to receive financial aid on  the basis of athletic ability.

*B. Equivalence in  Other Athletic Benefits and Opportunities*

1. *The Regulation*—The  Regulation requires that recipients that operate or sponsor interscholastic,  intercollegiate, club or intramural athletics. "provide equal athletic  opportunities for members of both sexes." In determining whether an  institution is providing equal opportunity in intercollegiate athletics the  regulation requires the Department to consider, among others, the following  factors:

(1) 3

(2) Provision and  maintenance of equipment and supplies;

(3) Scheduling of  games and practice times;

(4) Travel and per  diem expenses;

(5) Opportunity to  receive coaching and academic tutoring;

(6) Assignment and  compensation of coaches and tutors;

(7) Provision of  locker rooms, practice and competitive facilities;

(8) Provision of  medical and training services and facilities;

(9) Provision of  housing and dining services and facilities; and

(10) Publicity

4

2. *The Policy*—The  Department will assess compliance with both the recruitment and the general  athletic program requirements of the regulation by comparing the availability,  quality and kinds of benefits, opportunities, and treatment afforded members of  both sexes. Institutions will be in compliance if the compared program  components are equivalent, that is, equal or equal in effect. Under this  standard, identical benefits, opportunities, or treatment are not required,  provided the overall effects of any differences is negligible.

If comparisons of  program components reveal that treatment, benefits, or opportunities are not  equivalent in kind, quality or availability, a finding of compliance may still  be justified if the differences are the result of nondiscriminatory factors.  Some of the factors that may justify these differences are as follows:

a. Some aspects of  athletic programs may not be equivalent for men and women because of unique  aspects of particular sports or athletic activities. This type of distinction  was called for by the "Javits' Amendment" 5 to Title IX which  instructed HEW to make "reasonable (regulatory) provisions considering the  nature of particular sports" in intercollegiate athletics.

Generally, these  differences will be the result of factors that are inherent to the basic  operation of specific sports. Such factors may include rules of play,  nature/replacement of equipment, rates of injury resulting from participation,  nature of facilities required for competition, and the maintenance/ upkeep  requirements of those facilities. For the most part, differences involving such  factors will occur in programs offering football, and consequently these  differences will favor men. If sport-specific needs are met equivalently in  both men's and women's programs, however, differences in particular program  components will be found to be justifiable.

b. Some aspects of  athletic programs may not be equivalent for men and women because of  legitimately sex-neutral factors related to special circumstances of a  temporary nature. For example, large disparities in recruitment activity for  any particular year may be the result of annual fluctuations in team needs for  first-year athletes. Such differences are justifiable to the extent that they  do not reduce overall equality of opportunity.

c. The activities  directly associated with the operation of a competitive event in a single-sex  sport may, under some circumstances, create unique demands or imbalances in  particular program components. Provided any special demands associated with the  activities of sports involving participants of the other sex are met to an  equivalent degree, the resulting differences may be found nondiscriminatory. At  many schools, for example, certain sports—notably football and men's basketball—traditionally  draw large crowds. Since the costs of managing an athletic event increase with  crowd size, the overall support made available for event management to men's  and women's programs may differ in degree and kind. These differences would not  violate Title IX if the recipient does not limit the potential for women's  athletic events to rise in spectator appeal and if the levels of event  management support available to both programs are based on sex-neutral criteria  (e.g., facilities used, projected attendance, and staffing needs).

d. Some aspects of  athletic programs may not be equivalent for men and women because institutions  are undertaking voluntary affirmative actions to overcome effects of historical  conditions that have limited participation in athletics by the members of one  sex. This is authorized at § 86.3(b) of the regulation.

3. *Application of  the Policy—General Athletic Program Components*—

a. *Equipment and  Supplies (§ 86.41(c)(2))*. Equipment and supplies include but are not  limited to uniforms, other apparel, sport-specific equipment and supplies,  general equipment and supplies, instructional devices, and conditioning and  weight training equipment.

Compliance will be  assessed by examining, among other factors, the equivalence for men and women  of:

(1) The quality of  equipment and supplies;

(2) The amount of  equipment and supplies;

(3) The suitability of  equipment and supplies;

(4) The maintenance  and replacement of the equipment and supplies; and

(5) The availability  of equipment and supplies.

b. *Scheduling of  Games and Practice Times (§ 86.41(c)(3)).* Compliance will be assessed by  examining, among other factors, the equivalence for men and women of:

(1) The number of  competitive events per sport;

(2) The number and  length of practice opportunities;

(3) The time of day  competitive events are scheduled;

(4) The time of day  practice opportunities are scheduled; and

(5) The opportunities  to engage in available pre-season and post-season competition.

c. *Travel and Per  Diem Allowances (§ 86.41(c)(4)).* Compliance will be assessed by examining,  among other factors, the equivalence for men and women of:

(1) Modes of  transportation;

(2) Housing furnished  during travel;

(3) Length of stay  before and after competitive events;

(4) Per diem allowances;  and

(5) Dining  arrangements.

d. *Opportunity to  Receive Coaching and Academic Tutoring (§ 86.41(c)(5)).*

(1) Coaching—Compliance  will be assessed by examining, among other factors:

(a) Relative  availability of full-time coaches;

(b) Relative  availability of part-time and assistant coaches; and

(c) Relative  availability of graduate assistants.

(2) Academic tutoring—Compliance  will be assessed by examining, among other factors, the equivalence for men and  women of:

(a) The availability  of tutoring; and

e. *Assignment and  Compensation of Coaches and Tutors (§ 86.41(c)(6))*.6 In general, a violation of  Section 86.41(c)(6) will be found only where compensation or assignment  policies or practices deny male and female athletes coaching of equivalent  quality, nature, or availability.

Nondiscriminatory  factors can affect the compensation of coaches. In determining whether  differences are caused by permissible factors, the range and nature of duties,  the experience of individual coaches, the number of participants for particular  sports, the number of assistant coaches supervised, and the level of  competition will be considered.

Where these or similar  factors represent valid differences in skill, effort, responsibility or working  conditions they may, in specific circumstances, justify differences in  compensation. Similarly, there may be unique situations in which a particular  person may possess such an outstanding record of achievement as to justify an  abnormally high salary.

(1) Assignment of  Coaches—Compliance will be assessed by examining, among other factors, the  equivalence for men's and women's coaches of:

(a) Training,  experience, and other professional qualifications;

(b) Professional  standing.

(2) Assignment of  Tutors—Compliance will be assessed by examining, among other factors, the  equivalence for men's and women's tutors of:

(a) Tutor  qualifications;

(b) Training,  experience, and other qualifications.

(3) Compensation of  Coaches—Compliance will be assessed by examining, among other factors, the  equivalence for men's and women's coaches of:

(a) Rate of compensation  (per sport, per season);

(b) Duration of  contracts;

(c) Conditions  relating to contract renewal;

(d) Experience;

(e) Nature of coaching  duties performed;

(f) Working  conditions; and

(g) Other terms and  conditions of employment.

(4) Compensation of  Tutors—Compliance will be assessed by examining, among other factors, the  equivalence for men's and women's tutors of:

(a) Hourly rate of  payment by nature subjects tutored;

(b) Pupil loads per  tutoring season;

(c) Tutor  qualifications;

(d) Experience;

(e) Other terms and  conditions of employment.

f.*Provision of  Locker Rooms, Practice and Competitive Facilities (§ 86.41(c)(7))*.  Compliance will be assessed by examining, among other factors, the equivalence  for men and women of:  
(1) Quality and availability  of the facilities provided for practice and competitive events;

(2) Exclusivity of use  of facilities provided for practice and competitive events;

(3) Availability of  locker rooms;

(4) Quality of locker  rooms;

(5) Maintenance of  practice and competitive facilities; and

(6) Preparation of  facilities for practice and competitive events.

g. *Provision of  Medical and Training Facilities and Services (§ 86.41(c)(8)).* Compliance  will be assessed by examining, among other factors, the equivalence for men and  women of:

(1) Availability of  medical personnel and assistance;

(2) Health, accident  and injury insurance coverage;

(3) Availability and  quality of weight and training facilities;

(4) Availability and  quality of conditioning facilities; and

(5) Availability and  qualifications of athletic trainers.

h. *Provision of  Housing and Dining Facilities and Services (§ 86.41(c)(9)).*Compliance will  be assessed by examining, among other factors, the equivalence for men and  women of:

(1) Housing provided;

(2) Special services  as part of housing arrangements (e.g., laundry facilities, parking space, maid  service).

i. *Publicity (§  86.41(c)(10)).*Compliance will be assessed by examining, among other  factors, the equivalence for men and women of:

(1) Availability and  quality of sports information personnel;

(2) Access to other  publicity resources for men's and women's programs; and

(3) Quantity and  quality of publications and other promotional devices featuring men's and  women's programs.

4. *Application of  the Policy—Other Factors (§ 86.41(c)).*a.*Recruitment of Student  Athletes*.7 The athletic recruitment practices of institutions often affect the overall  provision of opportunity to male and female athletes. Accordingly, where equal  athletic opportunities are not present for male and female students, compliance  will be assessed by examining the recruitment practices of the athletic  programs for both sexes to determine whether the provision of equal opportunity  will require modification of those practices.

Such examinations will  review the following factors:

(1) Whether coaches or  other professional athletic personnel in the programs serving male and female  athletes are provided with substantially equal opportunities to recruit;

(2) Whether the  financial and other resources made available for recruitment in male and female  athletic programs are equivalently adequate to meet the needs of each program;  and

(3) Whether the  differences in benefits, opportunities, and treatment afforded prospective  student athletes of each sex have a disproportionately limiting effect upon the  recruitment of students of either sex.

b. *Provision of  Support Services.* The administrative and clerical support provided to an  athletic program can affect the overall provision of opportunity to male and  female athletes, particularly to the extent that the provided services enable  coaches to perform better their coaching functions.

In the provision of  support services, compliance will be assessed by examining, among other  factors, the equivalence of:

(1) The amount of  administrative assistance provided to men's and women's programs;

(2) The amount of  secretarial and clerical assistance provided to men's and women's programs.

5. *Overall  Determination of Compliance.*The Department will base its compliance  determination under ' 86.41(c) of the regulation upon an examination of the  following:

a. Whether the  policies of an institution are discriminatory in language or effect; or

b. Whether disparities  of a substantial and unjustified nature exist in the benefits, treatment,  services, or opportunities afforded male and female athletes in the  institution's program as a whole; or

c. Whether disparities  in benefits, treatment, services, or opportunities in individual segments of  the program are substantial enough in and of themselves to deny equality of  athletic opportunity.

*C. Effective  Accommodation of Student Interests and Abilities.*

 1. *The Regulation.* The regulation requires institutions to accommodate effectively the interests  and abilities of students to the extent necessary to provide equal opportunity  in the selection of sports and levels of competition available to members of  both sexes.

Specifically, the  regulation, at § 86.41(c)(1), requires the Director to consider, when  determining whether equal opportunities are available—

Whether the selection  of sports and levels of competition effectively accommodate the interests and  abilities of members of both sexes.

Section 86.41(c) also permits the Director of the Office for  Civil Rights to consider other factors in the determination of equal  opportunity. Accordingly, this section also addresses competitive opportunities  in terms of the competitive team schedules available to athletes of both sexes.

2. *The Policy*.  The Department will assess compliance with the interests and abilities section  of the regulation by examining the following factors:

a. The determination  of athletic interests and abilities of students;

b. The selection of  sports offered; and

c. The levels of  competition available including the opportunity for team competition.

3. *Application of  the Policy—Determination of Athletic Interests and Abilities.*

Institutions may determine  the athletic interests and abilities of students by nondiscriminatory methods  of their choosing provided:

a. The processes 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.

4. *Application of  the Policy—Selection of Sports.*

In the selection of  sports, the regulation does not require institutions to integrate their teams  nor to provide exactly the same choice of sports to men and women. However,  where an institution sponsors a team in a particular sport for members of one  sex, it may be required either to permit the excluded sex to try out for the  team or to sponsor a separate team for the previously excluded sex.

a. Contact Sports—Effective  accommodation means that if an institution sponsors a team for members of one  sex in a contact sport, it must do so for members of the other sex under the  following circumstances:

(1) The opportunities  for members of the excluded sex have historically been limited; and

(2) There is  sufficient interest and ability among the members of the excluded sex to  sustain a viable team and a reasonable expectation of intercollegiate  competition for that team.

b. Non-Contact Sports—Effective  accommodation means that if an institution sponsors a team for members of one  sex in a non-contact sport, it must do so for members of the other sex under  the following circumstances:

(1) The opportunities  for members of the excluded sex have historically been limited;

(2) There is  sufficient interest and ability among the members of the excluded sex to  sustain a viable team and a reasonable expectation of intercollegiate  competition for that team; and

(3) Members of the  excluded sex do not possess sufficient skill to be selected for a single  integrated team, or to compete actively on such a team if selected.

5. *Application of  the Policy—Levels of Competition.*

In effectively  accommodating the interests and abilities of male and female athletes,  institutions must provide both the opportunity for individuals of each sex to  participate in intercollegiate competition, and for athletes of each sex to  have competitive team schedules which equally reflect their abilities.

a. Compliance will be  assessed in any one of the following ways:

(1) Whether  intercollegiate level participation opportunities for male and female students  are provided in numbers substantially proportionate to their respective  enrollments; or

(2) Where the members  of one sex have been and are underrepresented among intercollegiate athletes,  whether the institution can show a history and continuing practice of program  expansion which is demonstrably responsive to the developing interest and  abilities of the members of that sex; or

(3) Where the members  of one sex are underrepresented among intercollegiate athletes, and the  institution cannot show a continuing practice of program expansion such as that  cited above, whether it can be demonstrated that the interests and abilities of  the members of that sex have been fully and effectively accommodated by the  present program.

b. Compliance with  this provision of the regulation will also be assessed by examining the  following:

(1) Whether the  competitive schedules for men's and women's teams, on a program-wide basis,  afford proportionally similar numbers of male and female athletes equivalently  advanced competitive opportunities; or

(2) Whether the  institution can demonstrate a history and continuing practice of upgrading the  competitive opportunities available to the historically disadvantaged sex as  warranted by developing abilities among the athletes of that sex.

c. Institutions are  not required to upgrade teams to intercollegiate status or otherwise develop  intercollegiate sports absent a reasonable expectation that intercollegiate  competition in that sport will be available within the institution's normal  competitive regions. Institutions may be required by the Title IX regulation to  actively encourage the development of such competition, however, when overall  athletic opportunities within that region have been historically limited for  the members of one sex.

6. *Overall  Determination of Compliance.*

The Department will  base its compliance determination under § 86.41(c) of the regulation upon a  determination of the following:

a. Whether the  policies of an institution are discriminatory in language or effect; or

b. Whether disparities  of a substantial and unjustified nature in the benefits, treatment, services, or  opportunities afforded male and female athletes exist in the institution's  program as a whole; or

c. Whether disparities  in individual segments of the program with respect to benefits, treatment,  services, or opportunities are substantial enough in and of themselves to deny  equality of athletic opportunity.

**VIII. The Enforcement  Process**

The process of Title  IX enforcement is set forth in § 88.71 of the Title IX regulation, which  incorporates by reference the enforcement procedures applicable to Title VI of  the Civil Rights Act of 1964.8 The enforcement process  prescribed by the regulation is supplemented by an order of the Federal  District Court, District of Columbia, which establishes time frames for each of  the enforcement steps.9

According to the regulation,  there are two ways in which enforcement is initiated:
- Compliance Reviews —Periodically the Department must select a number of       recipients (in this case, colleges and universities which operate       intercollegiate athletic programs) and conduct investigations to determine       whether recipients are complying with Title IX (45 CFR 80.7(a))
- Complaints —The Department must investigate all valid (written and       timely) complaints alleging discrimination on the basis of sex in a       recipient's programs. (45 CFR 80.7(b))

The Department must  inform the recipient (and the complainant, if applicable) of the results of its  investigation. If the investigation indicates that a recipient is in  compliance, the Department states this, and the case is closed. If the investigation  indicates noncompliance, the Department outlines the violations found.

The Department has 90  days to conduct an investigation and inform the recipient of its findings, and  an additional 90 days to resolve violations by obtaining a voluntary compliance  agreement from the recipient. This is done through negotiations between the  Department and the recipient, the goal of which is agreement on steps the  recipient will take to achieve compliance. Sometimes the violation is  relatively minor and can be corrected immediately. At other times, however, the  negotiations result in a plan that will correct the violations within a  specified period of time. To be acceptable, a plan must describe the manner in  which institutional resources will be used to correct the violation. It also  must state acceptable time tables for reaching interim goals and full  compliance. When agreement is reached, the Department notifies the institution  that its plan is acceptable. The Department then is obligated to review  periodically the implementation of the plan.

An institution that is  in violation of Title IX may already be implementing a corrective plan. In this  case, prior to informing the recipient about the results of its investigation,  the Department will determine whether the plan is adequate. If the plan is not  adequate to correct the violations (or to correct them within a reasonable  period of time) the recipient will be found in noncompliance and voluntary  negotiations will begin. However, if the institutional plan is acceptable, the  Department will inform the institution that although the institution has  violations, it is found to be in compliance because it is implementing a  corrective plan. The Department, in this instance also, would monitor the  progress of the institutional plan. If the institution subsequently does not  completely implement its plan, it will be found in noncompliance.

When a recipient is  found in noncompliance and voluntary compliance attempts are unsuccessful, the  formal process leading to termination of Federal assistance will be begun.  These procedures, which include the opportunity for a hearing before an  administrative law judge, are set forth at 45 CFR 80.8–80.11 and 45 CFR Part  81.

**IX. Authority**

(Secs. 901, 902,  Education Amendments of 1972, 86 Stat. 373, 374, 20 U.S.C. 1681, 1682; sec.  844, Education Amendments of 1974, Pub. L. 93-380, 88 Stat. 612; and 45 CFR  Part 86)

Dated December 3,  1979.

**Roma Stewart,**

*Director, Office for  Civil Rights, Department of Health, Education, and Welfare.*

Dated December 4,  1979.

**Patricia Roberts  Harris,**

*Secretary, Department  of Health, Education, and Welfare.*

**Appendix A—**Historic Patterns of Intercollegiate Athletics  Program Development

1. Participation in  intercollegiate sports has historically been emphasized for men but not women.  Partially as a consequence of this, participation rates of women are far below  those of men. During the 1977–78 academic year women students accounted for 48  percent of the national undergraduate enrollment (5,496,000 of 11,267,000  students).1 Yet, only 30 percent of the intercollegiate athletes are women.2

The historic emphasis  on men's intercollegiate athletic programs has also contributed to existing  differences in the number of sports and scope of competition offered men and  women. One source indicates that, on the average, colleges and universities are  providing twice the number of sports for men as they are for women.3

2. Participation by  women in sports is growing rapidly. During the period from 1971–1978, for  example, the number of female participants in organized high school sports  increased from 294,000 to 2,083,000—an increase of over 600 percent.4 In contrast, between Fall  1971 and Fall 1977, the enrollment of females in high school decreased from  approximately 7,600,000 to approximately 7,150,000 a decrease of over 5  percent.5

The growth in athletic  participation by high school women has been reflected on the campuses of the  nation's colleges and universities. During the period from 1971 to 1976 the  enrollment of women in the nation's institutions of higher education rose 52  percent, from 3,400,000 to 5,201,000.6 During this same period,  the number of women participating in intramural sports increased 108 percent  from 276,167 to 576,167. In club sports, the number of women participants  increased from 16,386 to 25,541 or 55 percent. In intercollegiate sports,  women's participation increased 102 percent from 31,852 to 64,375.7 These developments  reflect the growing interest of women in competitive athletics, as well as the  efforts of colleges and universities to accommodate those interests.

3. The overall growth  of women's intercollegiate programs has not been at the expense of men's  programs. During the past decade of rapid growth in women's programs, the  number of intercollegiate sports available for men has remained stable, and the  number of male athletes has increased slightly. Funding for men's programs has  increased from $1.2 to $2.2 million between 1970–1977 alone.8

4. On most campuses,  the primary problem confronting women athletes is the absence of a fair and  adequate level of resources, services, and benefits. For example,  disproportionately more financial aid has been made available for male athletes  than for female athletes. Presently, in institutions that are members of both  the National Collegiate Athletic Association (NCAA) and the Association for  Intercollegiate Athletics for Women (AIAW), the average annual scholarship  budget is $39,000. Male athletes receive $32,000 or 78 percent of this amount,  and female athletes receive $7,000 or 22 percent, although women are 30 percent  of all the athletes eligible for scholarships.9

Likewise, substantial  amounts have been provided for the recruitment of male athletes, but little  funding has been made available for recruitment of female athletes.  Congressional  testimony on Title IX and subsequent surveys indicates that discrepancies also  exist in the opportunity to receive coaching and in other benefits and opportunities,  such as the quality and amount of equipment, access to facilities and practice  times, publicity, medical and training facilities, and housing and dining  facilities.10

5. At several  institutions, intercollegiate football is unique among sports. The size of the  teams, the expense of the operation, and the revenue produced distinguish  football from other sports, both men's and women's. Title IX requires that  "an institution of higher education must comply with the prohibition  against sex discrimination imposed by that title and its implementing  regulations in the administration of any revenue producing intercollegiate  athletic activity."11 However, the unique size  and cost of football programs have been taken into account in developing this Policy  Interpretation.
**Appendix B—Comments  and Responses**

The Office for Civil  Rights (OCR) received over 700 comments and recommendations in response to the  December 11, 1978 publication of the proposed Policy Interpretation. After the  formal comment period, representatives of the Department met for additional  discussions with many individuals and groups including college and university  officials, athletic associations, athletic directors, women's rights  organizations and other interested parties. HEW representatives also visited  eight universities in order to assess the potential of the proposed Policy  Interpretation and of suggested alternative approaches for effective  enforcement of Title IX.

The Department  carefully considered all information before preparing the final policy. Some  changes in the structure and substance of the Policy Interpretation have been  made as a result of concerns that were identified in the comment and  consultation process.  Persons who responded  to the request for public comment were asked to comment generally and also to  respond specifically to eight questions that focused on different aspects of  the proposed Policy Interpretation.

*Question No. 1:* Is the description of the current status and  development of intercollegiate athletics for men and women accurate? What other  factors should be considered?

*Comment A:* Some commentors noted that the description  implied the presence of intent on the part of all universities to discriminate  against women. Many of these same commentors noted an absence of concern in the  proposed Policy Interpretation for those universities that have in good faith  attempted to meet what they felt to be a vague compliance standard in the  regulation.

*Response:* The description of the current status and  development of intercollegiate athletics for men and women was designed to be a  factual, historical overview. There was no intent to imply the universal  presence of discrimination. The Department recognizes that there are many  colleges and universities that have been and are making good faith efforts, in  the midst of increasing financial pressures, to provide equal athletic  opportunities to their male and female athletes. 

*Comment B:*Commentors stated that the statistics used  were outdated in some areas, incomplete in some areas, and inaccurate in some  areas. 

*Response:* Comment accepted. The statistics have been  updated and corrected where necessary. 

*Question No. 2:* Is the proposed two-stage approach to  compliance practical? Should it be modified? Are there other approaches to be  considered? 

*Comment:* Some commentors stated that Part II of the  proposed Policy Interpretation "Equally Accommodating the Interests and  Abilities of Women" represented an extension of the July 1978, compliance  deadline established in § 86.41(d) of the Title IX regulation. 

*Response:* Part II of the proposed Policy Interpretation  was not intended to extend the compliance deadline. The format of the two stage  approach, however, seems to have encouraged that perception; therefore, the  elements of both stages have been unified in this Policy Interpretation. 

*Question No. 3:* Is the equal average per capita standard  based on participation rates practical? Are there alternatives or modifications  that should be considered? 

*Comment A:*Some commentors stated it was unfair or  illegal to find noncompliance solely on the basis of a financial test when more  valid indicators of equality of opportunity exist. 

*Response:* The equal average per capita standard was not  a standard by which noncompliance could be found. It was offered as a standard  of presumptive compliance. In order to prove noncompliance, HEW would have been  required to show that the unexplained disparities in expenditures were  discriminatory in effect. The standard, in part, was offered as a means of  simplifying proof of compliance for universities. The widespread confusion  concerning the significance of failure to satisfy the equal average per capita  expenditure standard, however, is one of the reasons it was withdrawn. 

*Comment B:* Many commentors stated that the equal average  per capita standard penalizes those institutions that have increased  participation opportunities for women and rewards institutions that have  limited women's participation. 

*Response:* Since equality of average per capita  expenditures has been dropped as a standard of presumptive compliance, the  question of its effect is no longer relevant. However, the Department agrees  that universities that had increased participation opportunities for women and  wished to take advantage of the presumptive compliance standard, would have had  a bigger financial burden than universities that had done little to increase  participation opportunities for women. 

*Question No. 4:* Is there a basis for treating part of the  expenses of a particular revenue producing sport differently because the sport  produces income used by the university for non-athletic operating expenses on a  non-discriminatory basis? If, so, how should such funds be identified and  treated? 

*Comment:* Commentors stated that this question was  largely irrelevant because there were so few universities at which revenue from  the athletic program was used in the university operating budget. 

*Response:*Since equality of average per capita  expenditures has been dropped as a standard of presumed compliance, a decision  is no longer necessary on this issue.

*Question No. 5:* Is the grouping of financially measurable  benefits into three categories practical? Are there alternatives that should be  considered? Specifically, should recruiting expenses be considered together  with all other financially measurable benefits?

*Comment A:* Most commentors stated that, if measured  solely on a financial standard, recruiting should be grouped with the other  financially measurable items. Some of these commentors held that at the current  stage of development of women's intercollegiate athletics, the amount of money  that would flow into the women's recruitment budget as a result of separate  application of the equal average per capita standard to recruiting expenses,  would make recruitment a disproportionately large percentage of the entire  women's budget. Women's athletic directors, particularly, wanted the  flexibility to have the money available for other uses, and they generally  agreed on including recruitment expenses with the other financially measurable  items.

*Comment B:*Some commentors stated that it was  particularly inappropriate to base any measure of compliance in recruitment  solely on financial expenditures. They stated that even if proportionate  amounts of money were allocated to recruitment, major inequities could remain  in the benefits to athletes. For instance, universities could maintain a policy  of subsidizing visits to their campuses of prospective students of one sex but  not the other. Commentors suggested that including an examination of  differences in benefits to prospective athletes that result from recruiting  methods would be appropriate.

*Response:*In the final Policy Interpretation,  recruitment has been moved to the group of program areas to be examined under §  86.41(c) to determine whether overall equal athletic opportunity exists. The  Department accepts the comment that a financial measure is not sufficient to  determine whether equal opportunity is being provided. Therefore, in examining  athletic recruitment, the Department will primarily review the opportunity to  recruit, the resources provided for recruiting, and methods of recruiting.

*Question No. 6:*Are the factors used to justify differences in  equal average per capita expenditures for financially measurable benefits and  opportunities fair? Are there other factors that should be considered?

*Comment:* Most commentors indicated that the factors  named in the proposed Policy Interpretation (the "scope of  competition" and the "nature of the sport") as justifications  for differences in equal average per capita expenditures were so vague and  ambiguous as to be meaningless. Some stated that it would be impossible to  define the phrase "scope of competition", given the greatly differing  competitive structure of men's and women's programs. Other commentors were  concerned that the "scope of competition" factor that may currently  be designated as "nondiscriminatory" was, in reality, the result of  many years of inequitable treatment of women's athletic programs.

*Response:*The Department agrees that it would have been  difficult to define clearly and then to quantify the "scope of  competition" factor. Since equal average per capita expenditures has been  dropped as a standard of presumed compliance, such financial justifications are  no longer necessary. Under the equivalency standard, however, the "nature  of the sport" remains an important concept. As explained within the Policy  Interpretation, the unique nature of a sport may account for perceived  inequities in some program areas.

*Question No 7:* Is the comparability standard for benefits  and opportunities that are not financially measurably fair and realistic?  Should other factors controlling comparability be included? Should the  comparability standard be revised? Is there a different standard which should  be considered?

*Comment:* Many commentors stated that the comparability  standard was fair and realistic. Some commentors were concerned, however, that  the standard was vague and subjective and could lead to uneven enforcement.

*Response:*The concept of comparing the non-financially  measurable benefits and opportunities provided to male and female athletes has  been preserved and expanded in the final Policy Interpretation to include all  areas of examination except scholarships and accommodation of the interests and  abilities of both sexes. The standard is that equivalent benefits and  opportunities must be provided. To avoid vagueness and subjectivity, further  guidance is given about what elements will be considered in each program area  to determine the equivalency of benefits and opportunities.

*Question No. 8:*Is the proposal for increasing the opportunity  for women to participate in competitive athletics appropriate and effective?  Are there other procedures that should be considered? Is there a more effective  way to ensure that the interest and abilities of both men and women are equally  accommodated?

*Comment:* Several commentors indicated that the  proposal to allow a university to gain the status of presumed compliance by  having policies and procedures to encourage the growth of women's athletics was  appropriate and effective for future students, but ignored students presently  enrolled. They indicated that nowhere in the proposed Policy Interpretation was  concern shown that the current selection of sports and levels of competition  effectively accommodate the interests and abilities of women as well as men.

*Response:*Comment accepted. The requirement that  universities equally accommodate the interests and abilities of their male and  female athletes (Part II of the proposed Policy Interpretation) has been  directly addressed and is now a part of the unified final Policy  Interpretation.

**Additional Comments**

The following comments  were not responses to questions raised in the proposed Policy Interpretation.  They represent additional concerns expressed by a large number of commentors.

(1) *Comment:* Football and other "revenue producing" sports should be totally  exempted or should receive special treatment under Title IX.

*Response:* The April 18, 1978, opinion of the General  Counsel, HEW, concludes that "an institution of higher education must  comply with the prohibition against sex discrimination imposed by that title  and its implementing regulation in the administration of any revenue producing  activity". Therefore, football or other "revenue producing" sports  cannot be exempted from coverage of Title IX.

In developing the  proposed Policy Interpretation the Department concluded that although the fact  of revenue production could not justify disparity in average per capita  expenditure between men and women, there were characteristics common to most  revenue producing sports that could result in legitimate nondiscriminatory  differences in per capita expenditures. For instance, some "revenue  producing" sports require expensive protective equipment and most require  high expenditures for the management of events attended by large numbers of  people. These characteristics and others described in the proposed Policy  Interpretation were considered acceptable, nondiscriminatory reasons for  differences in per capita average expenditures.

In the final Policy  Interpretation, under the equivalent benefits and opportunities standard of  compliance, some of these non-discriminatory factors are still relevant and  applicable.

(2) *Comment:* Commentors stated that since the equal average per capita standard of presumed  compliance was based on participation rates, the word should be explicitly  defined.

*Response:* Although the final Policy Interpretation does  not use the equal average per capita standard of presumed compliance, a clear  understanding of the word "participant" is still necessary,  particularly in the determination of compliance where scholarships are  involved. The word "participant" is defined in the final Policy  Interpretation.

(3) *Comment:* Many commentors were concerned that the proposed Policy Interpretation  neglected the rights of individuals.

*Response:*The proposed Policy Interpretation was  intended to further clarify what colleges and universities must do within their  intercollegiate athletic programs to avoid discrimination against individuals  on the basis of sex. The Interpretation, therefore, spoke to institutions in  terms of their male and female athletes. It spoke specifically in terms of  equal, average per capita expenditures and in terms of comparability of other  opportunities and benefits for male and female participating athletes.

The Department  believes that under this approach the rights of individuals were protected. If  women athletes, as a class, are receiving opportunities and benefits equal to  those of male athletes, individuals within the class should be protected  thereby. Under the proposed Policy Interpretation, for example, if female  athletes as a whole were receiving their proportional share of athletic  financial assistance, a university would have been presumed in compliance with  that section of the regulation. The Department does not want and does not have  the authority to force universities to offer identical programs to men and  women. Therefore, to allow flexibility within women's programs and within men's  programs, the proposed Policy Interpretation stated that an institution would  be presumed in compliance if the average per capita expenditures on athletic  scholarships for men and women, were equal. This same flexibility (in  scholarships and in other areas) remains in the final Policy Interpretation.

(4) *Comment:* Several commentors stated that the provision of a separate dormitory to  athletes of only one sex, even where no other special benefits were involved,  is inherently discriminatory. They felt such separation indicated the different  degrees of importance attached to athletes on the basis of sex.

*Response:*Comment accepted. The provision of a separate  dormitory to athletes of one sex but not the other will be considered a failure  to provide equivalent benefits as required by the regulation.

(5) *Comment:* Commentors, particularly colleges and universities, expressed concern that the  differences in the rules of intercollegiate athletic associations could result  in unequal distribution of benefits and opportunities to men's and women's  athletic programs, thus placing the institutions in a posture of noncompliance  with Title IX.

*Response:*Commentors made this point with regard to §  86.6(c) of the Title IX regulation, which reads in part:

"The obligation  to comply with (Title IX) is not obviated or alleviated by any rule or  regulation of any * * * athletic or other * * * association * * *"  Since the penalties  for violation of intercollegiate athletic association rules can have a severe  effect on the athletic opportunities within an affected program, the Department  has reexamined this regulatory requirement to determine whether it should be  modified. Our conclusion is that modification would not have a beneficial  effect, and that the present requirement will stand.

Several factors enter  into this decision. First, the differences between rules affecting men's and  women's programs are numerous and change constantly. Despite this, the  Department has been unable to discover a single case in which those differences  require members to act in a discriminatory manner. Second, some rule  differences may permit decisions resulting in discriminatory distribution of  benefits and opportunities to men's and women's programs. The fact that  institutions respond to differences in rules by choosing to deny equal  opportunities, however, does not mean that the rules themselves are at fault;  the rules do not prohibit choices that would result in compliance with Title  IX. Finally, the rules in question are all established and subject to change by  the membership of the association. Since all (or virtually all) association  member institutions are subject to Title IX, the opportunity exists for these  institutions to resolve collectively any wide-spread Title IX compliance  problems resulting from association rules. To the extent that this has not  taken place, Federal intervention on behalf of statutory beneficiaries is both  warranted and required by the law. Consequently, the Department can follow no  course other than to continue to disallow any defenses against findings of  noncompliance with Title IX that are based on intercollegiate athletic  association rules.

(6) *Comment:* Some commentors suggested that the equal average per capita test was unfairly  skewed by the high cost of some "major" men's sports, particularly  football, that have no equivalently expensive counterpart among women's sports.  They suggested that a certain percentage of those costs (e.g., 50% of football  scholarships) should be excluded from the expenditures on male athletes prior to  application of the equal average per capita test.

*Response:* Since equality of average per capita  expenditures has been eliminated as a standard of presumed compliance, the  suggestion is no longer relevant. However, it was possible under that standard  to exclude expenditures that were due to the nature of the sport, or the scope  of competition and thus were not discriminatory in effect. Given the diversity  of intercollegiate athletic programs, determinations as to whether disparities  in expenditures were nondiscriminatory would have been made on a case-by-case  basis. There was no legal support for the proposition that an arbitrary  percentage of expenditures should be excluded from the calculations.

(7) *Comment*:  Some commentors urged the Department to adopt various forms of team-based  comparisons in assessing equality of opportunity between men's and women's  athletic programs. They stated that well-developed men's programs are  frequently characterized by a few "major" teams that have the  greatest spectator appeal, earn the greatest income, cost the most to operate,  and dominate the program in other ways. They suggested that women's programs  should be similarly constructed and that comparability should then be required  only between "men's major" and "women's major" teams, and  between "men's minor" and "women's minor" teams. The men's  teams most often cited as appropriate for "major" designation have  been football and basketball, with women's basketball and volleyball being  frequently selected as the counterparts.

*Response:* There are two problems with this approach to  assessing equal opportunity. First, neither the statute nor the regulation  calls for identical programs for male and female athletes. Absent such a  requirement, the Department cannot base noncompliance upon a failure to provide  arbitrarily identical programs, either in whole or in part.

Second, no subgrouping  of male or female students (such as a team) mat be used in such a way as to  diminish the protection of the larger class of males and females in their  rights to equal participation in educational benefits or opportunities. Use of  the "major/minor" classification does not meet this test where large  participation sports (e.g., football) are compared to smaller ones (e.g.,  women's volleyball) in such a manner as to have the effect of disproportionately  providing benefits or opportunities to the members of one sex.

(8) *Comment:* Some commenters suggest that equality of opportunity should be measured by a  "sport-specific" comparison. Under this approach, institutions  offering the same sports to men and women would have an obligation to provide  equal opportunity within each of those sports. For example, the men's  basketball team and the women's basketball team would have to receive equal  opportunities and benefits.

*Response:*As noted above, there is no provision for the  requirement of identical programs for men and women, and no such requirement  will be made by the Department. Moreover, a sport-specific comparison could  actually create unequal opportunity. For example, the sports available for men  at an institution might include most or all of those available for women; but  the men's program might concentrate resources on sports not available to women  (e.g., football, ice hockey). In addition, the sport-specific concept overlooks  two key elements of the Title IX regulation.

First, the regulation  states that the selection of sports is to be representative of student  interests and abilities (86.41(c)(1)). A requirement that sports for the  members of one sex be available or developed solely or the basis of their  existence or development in the program for members of the other sex could  conflict with the regulation where the interests and abilities of male and  female students diverge.

Second, the regulation  frames the general compliance obligations of recipients in terms of  program-wide benefits and opportunities (86.41(c)). As implied above, Title IX  protects the individual as a student-athlete, not all a basketball player, or  swimmer.

(9) *Comment:*A  coalition of many colleges and universities urged that there are no objective  standards against which compliance with Title IX in intercollegiate athletics  could be measured. They felt that diversity is so great among colleges and  universities that no single standard or set of standards could practicably  apply to all affected institutions. They concluded that it would be best for  individual institutions to determine the policies and procedures by which to  ensure nondiscrimination in intercollegiate athletic programs.

Specifically, this  coalition suggested that each institution should create a group representative  of all affected parties on campus.

This group would then  assess existing athletic opportunities for men and women, and, on the basis of  the assessment, develop a plan to ensure nondiscrimination. This plan would then  be recommended to the Board of Trustees or other appropriate governing body.

The role foreseen for  the Department under this concept is:

(a) The Department  would use the plan as a framework for evaluating complaints and assessing  compliance;

(b) The Department  would determine whether the plan satisfies the interests of the involved  parties; and

(c) The Department  would determine whether the institution is adhering to the plan.
  These commenters felt  that this approach to Title IX enforcement would ensure an environment of equal  opportunity.
*Response:* Title IX is an antidiscrimination law. It  prohibits discrimination based on sex in educational institutions that are  recipients of Federal assistance. The legislative history of Title IX clearly  shows that it was enacted because of discrimination that currently was being  practiced against women in educational institutions. The Department accepts  that colleges and universities are sincere in their intention to ensure equal  opportunity in intercollegiate athletics to their male and female students. It  cannot, however, turn over its responsibility for interpreting and enforcing  the law. In this case, its responsibility includes articulating the standards  by which compliance with the Title IX statute will be evaluated.

The Department agrees  with this group of commenters that the proposed self-assessment and  institutional plan is an excellent idea. Any institution that engages in the  assessment/planning process, particularly with the full participation of  interested parties as envisioned in the proposal, would clearly reach or move  well toward compliance. In addition, as explained in Section VIII of this  Policy Interpretation, any college or university that has compliance problems  but is implementing a plan that the Department determines will correct those  problems within a reasonable period of time, will be found in compliance.

[FR Doc. 79-37965  Filed 12-10-79; 8:45 am)

**BILLING CODE 4110-12-M**
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1 The regulation  specifically refers to club sports separately from intercollegiate athletics.  Accordingly, under this Policy Interpretation, club teams will not be  considered to be intercollegiate teams except in those instances where they  regularly participate in varsity competition.2 See also §  86.37(a) of the regulation.3 86.41(c)(1) on the  accommodation of student interests and abilities, is covered in detail in the  following Section C of this policy Interpretation.4 See also §  88.41(a) and (b) of the regulation.5  Section 844 of the  Education Amendments of 1974, Pub. L 93-380, Title VIII, (August 21, 1974) 88  Stat. 612.6   The Department's  jurisdiction over the employment practices of recipients under Subpart E, §§  86.51–86.61 of the Title IX regulation has been successfully challenged in  several court cases. Accordingly, the Department has suspended enforcement of  Subpart E. Section 86.41(c)(6) of the regulation, however, authorizes the  Department to consider the compensation of coaches of men and women in the  determination of the equality of athletic opportunity provided to male and  female athletes. It is on this section of the regulation that this Policy  Interpretation is based.7  Public  undergraduate institutions are also subject to the general anti-discrimination  provision at § 86.23 of the regulation, which reads in part:     ‘‘A recipient * * * shall not discriminate  on the basis of sex in the recruitment and admission of students. A recipient  may be required to undertake additional recruitment efforts for one sex as  remedial action * * * and may choose to undertake such efforts as affirmative  action * * *”    Accordingly, institutions subject to §  86.23 are required in all cases to maintain equivalently effective recruitment  programs for both sexes and, under § 88.41(c), to provide equivalent benefits,  opportunities, and treatment to student athletes of both sexes.8 Those procedures  may be found at 45 CFR 80.6—80.11 and 45 CFR Part 8.9*WEAL v. Harris*,  Civil Action No. 74-1720 (D.D.C., December 29, 1977).

1*The Condition  of Education 1979*, National Center for Education Statistics, p. 112.2 Figure obtained  from Association for Intercollegiate Athletics for Women (AIAW) member survey, *AIAW  Structure Implementation Survey Data Summary*, October 1978, p. 11.3 U.S. Commission on  Civil Rights, Comments to DHEW on proposed Policy Interpretation; Analysis of  data supplied by the National Association of Directors of Collegiate Athletics.4 Figures obtained  from National Federation of High School Associations (NFHSA) data.5*Digest of  Education Statistics 1977–78*, National Center for Education Statistics  (1978), Table 40, at 44. Data, by sex, are unavailable for the period from 1971  to 1977; consequently, these figures represent 50 percent of total enrollment  for that period. This is the best comparison that could be made based on  available data.6 Ibid, p. 112.7 These figures,  which are not precisely comparable to those cited at footnote 2, were obtained  from *Sports and Recreational Programs of the Nation's Universities and  Colleges*, NCAA Report No. 5, March 1978. It includes figures only from the  722 NCAA member institutions because comparable data was not available from  other associations.8 Compiled from *NCAA  Revenues and Expenses for Intercollegiate Athletic Programs*, 1978.9 Figures obtained  from *AIAW Structure Implementation Survey Data Summary*, October, 1978,  p. 11.10 121 Cong. REc.  29791–95 (1975) (remarks of Senator Williams); Comments by Senator Bayh,  Hearings on S. 2106 Before the Subcommittee on Education of the Senate  Committee on Labor and Public Welfare, 94th Congress, 1st Session 48 (1975);  “Survey of Women’s Athletic Directors,” AIAW Workshop (January 1978).11 See April 18,1979,  Opinion of General Counsel, Department of Health, Education, and Welfare, page  1.
  Last Modified: 01/20/2023