IV 

109TH CONGRESS 

2D SESSION H. RES. 735 

Expressing the sense of the House of Representatives that the ‘‘Additional 

Clarification of Intercollegiate Athletics Policy: Three-Part Test—part 

Three’’, issued by the United States Department of Education without 

notice or opportunity for public comment on March 17, 2005, is inconsistent with longstanding Department policies and fundamental principles 

of equality, is a disservice to our Nation’s young women, and should 

be withdrawn by the Department of Education. 

IN THE HOUSE OF REPRESENTATIVES 

MARCH 16, 2006 

Ms. WOOLSEY (for herself, Mr. SHAYS, Ms. SOLIS, Mrs. JOHNSON of Connecticut, Mrs. CAPPS, Mr. BOEHLERT, Mr. GEORGE MILLER of California, Mr. SIMMONS, Ms. PELOSI, Mr. PETERSON of Minnesota, Ms. 

BALDWIN, Ms. MOORE of Wisconsin, Mr. AL GREEN of Texas, Ms. 

MCCOLLUM of Minnesota, Mr. FARR, Mr. BROWN of Ohio, Ms. MATSUI, 

Ms. WATSON, Ms. MILLENDER-MCDONALD, Mr. NADLER, Ms. SLAUGHTER, Mr. FRANK of Massachusetts, Mr. CAPUANO, Mr. OLVER, Mr. 

LEWIS of Georgia, Mr. CARDIN, Ms. HERSETH, Ms. BEAN, Mr. 

KUCINICH, Ms. WASSERMAN SCHULTZ, Mr. GRIJALVA, Ms. DEGETTE, 

Mrs. MALONEY, Mr. CONYERS, Ms. HOOLEY, Mr. CASE, Ms. 

SCHAKOWSKY, Mrs. TAUSCHER, Ms. ROYBAL-ALLARD, Ms. JACKSON-LEE

of Texas, Ms. ZOE LOFGREN of California, Mr. SABO, Mrs. CAPITO, Mr. 

OWENS, Mr. VAN HOLLEN, Mr. PAYNE, and Mr. DAVIS of Illinois) submitted the following resolution; which was referred to the Committee on 

Education and the Workforce 

RESOLUTION 

Expressing the sense of the House of Representatives that 

the ‘‘Additional Clarification of Intercollegiate Athletics 

Policy: Three-Part Test—part Three’’, issued by the 

United States Department of Education without notice 


rwilkins on PROD1PC63 with BILLS
2 

•HRES 735 IH 

or opportunity for public comment on March 17, 2005, 

is inconsistent with longstanding Department policies 

and fundamental principles of equality, is a disservice 

to our Nation’s young women, and should be withdrawn 

by the Department of Education. 

Whereas title IX of the Education Amendments of 1972 prohibits educational institutions that receive Federal funding from discriminating on the basis of sex, including in 

their athletics programs and activities; 

Whereas prior to 1972 and the enactment of title IX, virtually no college or university offered athletic scholarships to women, fewer than 32,000 women participated 

in collegiate sports, and women’s sports received only 2 

percent of funds spent on college athletics programs; 

Whereas as a result of title IX, women’s opportunities to participate in and benefit from collegiate athletics programs 

have grown dramatically, such that there are now nearly 

160,000 women competing on intercollegiate teams; 

Whereas despite the gains engendered by title IX, discriminatory barriers to women’s participation in sports remain, 

and women receive only about 43 percent of the opportunities to play intercollegiate sports, 38 percent of athletic 

operating budgets, and 33 percent of the funds spent to 

recruit new athletes; 

Whereas the Department of Health, Education, and Welfare 

issued ‘‘Title IX of the Education Amendments of 1972; 

a Policy Interpretation; Title IX and Intercollegiate Athletics’’ in 1979 (later adopted by the Department of Education) (‘‘1979 Policy Interpretation’’) that allows educational institutions to comply with title IX’s requirement 

that they provide equal sports participation opportunities 


rwilkins on PROD1PC63 with BILLS
3 

•HRES 735 IH 

for their male and female students in one of three independent ways: by providing participation opportunities 

for male and female students in numbers substantially 

proportionate to their respective full-time enrollments, by 

showing a history and continuing practice of program expansion responsive to the interests and abilities of the 

under-represented sex, or by fully and effectively accommodating the interests and abilities of members of the 

under-represented sex; 

Whereas the Office for Civil Rights of the Department of 

Education in 1996 issued a ‘‘Clarification of Intercollegiate Athletics Policy Guidance’’ (‘‘1996 Clarification’’) 

that set out specific examples and additional advice to 

guide educational institutions in meeting the standards of 

this ‘‘three-part test;’’ 

Whereas the 1979 Policy Interpretation and the 1996 Clarification provide educational institutions with ample and 

fair guidance on compliance with title IX and provide 

flexibility to the institutions so that they may determine 

for themselves how best to comply with the law; 

Whereas two out of three educational institutions have complied with the three-part test under the second or third 

part of the test; 

Whereas the three-part test has been deferred to by every 

Federal appellate court—nine of nine—that has considered it; 

Whereas the three-part test has been supported by every Department of Education since its adoption in 1979; 

Whereas the most recent affirmation of the three-part test 

came on July 11, 2003, when the Office for Civil Rights 

of the Department of Education issued the ‘‘Further 


rwilkins on PROD1PC63 with BILLS
4 

•HRES 735 IH 

Clarification of Intercollegiate Athletics Policy Guidance 

Regarding Title IX Compliance’’ (‘‘Further Clarification’’) which reaffirmed that the three-part test is flexible 

and fair, specifically incorporated the factors and examples set forth in the 1996 Clarification, and pledged to 

aggressively enforce title IX standards; 

Whereas the 2003 Further Clarification followed the Department’s establishment of a Commission on Opportunity in 

Athletics, which Commission made recommendations for 

changes to the title IX athletics policies that would have 

seriously weakened title IX’s protections and resulted in 

significant losses in participation opportunities and scholarships to which young women are legally entitled; 

Whereas the recommendations made by the Commission on 

Opportunity in Athletics triggered massive public opposition and generated thousands of communications to the 

Department, the White House, and the Congress supporting the maintenance of the then-current title IX athletics policies without change; 

Whereas the 2003 Further Clarification represented the Department’s rejection of the Commission’s recommendations; 

Whereas the Department, without notice or opportunity for 

public input, issued an ‘‘Additional Clarification of Intercollegiate Athletics Policy: Three-Part Test—part Three’’ 

on March 17, 2005 (‘‘Additional Clarification’’), which 

allows schools to demonstrate full accommodation of 

women’s athletic interests under the third part of the 

three-part test solely by conducting an e-mail survey and 

further allows schools to treat a lack of response to the 

survey as a lack of interest in playing additional sports; 


rwilkins on PROD1PC63 with BILLS
5 

•HRES 735 IH 

Whereas the Additional Clarification is inconsistent with the 

1996 Clarification and with basic principles of equity 

under title IX because it, among other problems (1) permits schools to use surveys alone, rather than the multiple factors set forth in the 1996 Clarification, as a 

means to demonstrate full accommodation of women’s 

athletic interests, (2) conflicts with a key purpose of title 

IX—to encourage women’s interests in sports and eliminate stereotypes that discourage them from participating, 

(3) allows schools to restrict surveys to enrolled and admitted students, thereby permitting them to evade their 

legal obligation to measure interest broadly, (4) authorizes a flawed survey methodology, including by allowing 

schools to count non-responses as evidence of lack of interest in additional sports opportunities, (5) shifts the 

burden to female students to show that they are interested in and entitled to additional participation opportunities, and (6) makes no provision for the Department of 

Education to monitor schools’ implementation of the survey or its results; 

Whereas for these reasons, the Additional Clarification makes 

it easier for colleges and universities to evade their legal 

obligation to provide equal opportunity in sports and violates the Department’s 2003 commitment to strongly enforce long-standing title IX standards; 

Whereas for these reasons, the Additional Clarification is 

likely to be found to violate the standards of title IX as 

explained in relevant court cases; and 

Whereas for these reasons, the Additional Clarification 

threatens to reverse the enormous progress women and 

girls have made in sports since the enactment of title IX 

and to slow, if not stop, efforts to address the continuing 


rwilkins on PROD1PC63 with BILLS
6 

•HRES 735 IH 

discrimination to which female athletes are still subject: 

Now, therefore, be it 

1 Resolved, That it is the sense of the House of Rep2 resentatives that— 

3 (1) the March 17, 2005, ‘‘Additional Clarifica4 tion’’ violates the spirit and intent of the mandate 

5 of title IX of the Education Amendments of 1972 to 

6 provide equal opportunities in athletics and changes 

7 prior Department of Education policies and long8 standing title IX law; 

9 (2) the Department of Education should with10 draw the March 17, 2005, ‘‘Additional Clarifica11 tion,’’ leaving intact the standards of the 1996 Clar12 ification, which standards anticipate the use of a 

13 multiplicity of tools and analyses to demonstrate 

14 compliance under the third part of title IX’s three15 part test; and 

16 (3) the Department of Education should honor 

17 its 2003 commitment to enforce the standards of 

18 longstanding title IX athletics policies, including the 

19 1996 Clarification. 

Æ 


rwilkins on PROD1PC63 with BILLS