Too Lax on Title IX

YOU MAY REMEMBER the flurry, a few years back, over Title IX, the federal law that prohibits institutions that receive federal funding from discriminating on the basis of sex, including in their athletic programs. Some critics argued that colleges were so constrained by the law's requirement of equal treatment that they were cutting some men's sports, such as swimming and wrestling. A blue-ribbon commission appointed by the Education Department recommended changes that the law's supporters said would have gutted its protections. And in the end, the Bush administration kept the existing rules in place. Last month, though, the department -- quietly and without any of the usual advance discussion -- issued new guidance that could make it easier for colleges and universities to shortchange women's athletics.

The issue involves how schools can show that they're providing the equal athletic opportunity called for under the law. They can prove this in one of three ways: showing that male and female students participate in intercollegiate sports in numbers "substantially proportionate" to their enrollment; that the school has "a history and continuing practice of program expansion" for women athletes; or that -- even if women athletes are underrepresented and athletic programs for women aren't growing -- female students' "interests and abilities . . . have been fully and effectively accommodated by the present program."

The Education Department's new interpretation defines that third test in a way that could undermine the enormous progress women have made in college sports. Under the new rules, colleges can demonstrate that they are responding to student interests simply by sending out e-mail surveys to students. If the results -- including a failure to respond -- show "insufficient interest to support an additional varsity team," the school will be presumed to be complying with Title IX, a presumption that can only be overcome with "direct and very persuasive evidence of unmet interest."

Well-designed surveys that generate a high rate of response can be useful tools to help determine whether schools are living up to their responsibilities under Title IX -- though not as the sole basis for making that judgment. The Education Department deserves credit for developing a model survey that improves on the sloppy questionnaires in use by a number of schools. It also urged schools to improve the generally anemic response to such surveys -- for example, by having students fill them out online, as part of their registration process.

But overall, the new policy sets too lax a standard. Schools can simply e-mail students, providing links to the survey and warning that failure to respond will be taken as evidence of apathy. "Although rates of nonresponse may be high with this procedure, nonresponse is interpretable as a lack of interest," the department says. That goes too far, especially given the new rules for rebutting the results of the surveys. Indeed, the co-chairman of the administration's Title IX commission, Stanford University athletic director Ted Leland, criticized the policy, saying the administration erred in changing the rules without discussion and that it would be a "huge mistake" to rely solely on survey responses. He's correct on both counts.