In a disappointing but not exactly surprising move, the U.S. Commission on Civil Rights has issued a report that endorsing the practice of colleges and universities to measure compliance with prong three by relying on the Model Survey method that the Department of Education created in 2005. Prong 3 measures whether schools fully and effectively accommodate the interests and abilities of the underrepresented sex; it is a less stringent standard than the alternative prongs of (1) statistical proportionality or (2) history and continuing practice of expanding opportunities for the underrepresented sex. The Model Survey allows schools to survey students of the underrepresented sex at a college or university to see whether there is unmet interest in athletic opportunities that students would have the skill and talent to undertake. Unless the survey shows unmet interest and ability in numbers sufficiently large to field a team, the existing athletic opportunities are deemed to comply with Title IX, even if women are severely underrepresented.
Critics–myself among them–argued that the Model Survey approach perpetuates existing disparities in athletic opportunities. For one thing, the Model Survey requires only women (or whichever is the underrepresented sex, but it’s nearly always women) to prove their interest by enrolling first at a school that doesn’t even offer the opportunity they are interested and able to undertake. Men do not have that burden, and are advantage by the likely reality that coaches and athletic administrators are actively recruiting interested and talented male athletes to the student body. Moreover interest and ability are constructed, in part, by the opportunities that are made available. When there are no opportunities, interest and ability remain stagnant. The Model Survey creates a vicious cycle, then, because the absence of interest and ability means the absence of opportunity.
It’s not clear whether the U.S. Commission on Civil Rights endorsement of the Model Survey approach. The Commission is an unusual agency in that it does not have enforcement power, only the power to make recommendations and reports. For another, it is regarded as a body that is motivated by political considerations more so than independent, objective expertise. No surprisingly, the five commissioners (of 8) who endorsed the Model Survey recommendation (one of whom was technically an absention) were all appointed by President Bush. Another reason that the Commission’s report is of questionable influence is that the Model Survey has a strong opponent in the NCAA, which has urged its member institutions not to rely on he Model Survey, for the reasons noted above. Like the Commission, the NCAA does not have enforcement authority with respect to Title IX. But it arguably has more name recognition and persuasive authority than this rather obscure commission.