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College Sports Council
PO Box 53356,
Washington, DC 20009
August 24, 2006
Dr. John D. Welty
President
California State University, Fresno
5241 N. Maple Avenue
Fresno, CA 93740-8027
Dear President Welty,
It has been over a year now since the U.S. Department of
Education (DoEd) issued a new guideline on Title IX compliance,
enabling schools to measure student interest in athletics
through the use of a DoEd approved survey. As you know, the
NCAA has discouraged member institutions from using this new
compliance tool, citing efficacy and bias.
However, the College Sports Council (CSC) would like to bring
to your attention a compelling legal analysis published in
the Vanderbilt Journal of Entertainment and Technology Law
http://law.vanderbilt.edu/jetl. This paper concludes that
schools that conduct surveys will be vastly safer from litigation
or federal sanction than those who forgo the option. Even
if schools aspire to proportionality compliance, having survey
results in hand will act as a legal stopgap, if they fall
short on that prong.
It is worth noting that the “safe harbor” concept
was the very rationale that made proportionality so widespread
in the first place. Schools felt that it was the only surefire,
measurable compliance method. The survey, as provided by the
DoEd, is also measurable and now considered a “safe
harbor.” Schools have not just an opportunity to utilize
a better compliance method, but many schools that are not
proportional may have a legal responsibility to conduct surveys
in order to demonstrate compliance with one of the other prongs
of the three-part test. To advise any school to forego a safeguard
that is as straightforward as the DoEd’s interest survey
would appear to be simply reckless in many specific cases.
Men and women both deserve the opportunity to voice their
interest. There is no method that could be more fair and straightforward
for students to demonstrate their interest than simply to
be asked.
As a new school year begins, we urge you to conduct a survey
of athletic interest as part of your course registration process,
including both male and female students. The CSC believes
that it is both a reasonable way to provide opportunity and
a prudent legal course of action.
We welcome your thoughts and dialogue on this issue.
Best Regards,
Eric Pearson,
Executive Director
College Sports Council
www.collegesportscouncil.org
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