[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H. Res. 735 Introduced in House (IH)]







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  young women, and should be withdrawn by the Department of Education.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 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  young women, and should be withdrawn by the Department of Education.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 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 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;
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 discrimination to which female athletes are still subject: 
        Now, therefore, be it
    Resolved, That it is the sense of the House of Representatives 
that--
            (1) the March 17, 2005, ``Additional Clarification'' 
        violates the spirit and intent of the mandate of title IX of 
        the Education Amendments of 1972 to provide equal opportunities 
        in athletics and changes prior Department of Education policies 
        and longstanding title IX law;
            (2) the Department of Education should withdraw the March 
        17, 2005, ``Additional Clarification,'' leaving intact the 
        standards of the 1996 Clarification, which standards anticipate 
        the use of a multiplicity of tools and analyses to demonstrate 
        compliance under the third part of title IX's three-part test; 
        and
            (3) the Department of Education should honor its 2003 
        commitment to enforce the standards of longstanding title IX 
        athletics policies, including the 1996 Clarification.
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