• rate of substitutions necessitated by factors such as length of competitions, intensity of play, or injury;
• variety of skill sets required for competition; and
• minimum number of athletes needed to conduct effective practices for skill development.

2. Reasonable Expectation of Competition — OCR Evaluation Criteria

Lastly, as indicated in the 1996 Clarification, OCR evaluates whether there is a reasonable expectation of intercollegiate competition for the team in the institution’s normal competitive regions.  In evaluating available competition, OCR considers available competitive opportunities in the geographic area in which the institution’s athletes primarily compete, including:

• competitive opportunities offered by other schools against which the institution competes; and
• competitive opportunities offered by other schools in the institution's geographic area, including those offered by schools against which the institution does not now compete.²⁶

If the information or documentation compiled by the institution during the assessment process shows that there is sufficient interest and ability to support a new intercollegiate team and a reasonable expectation of intercollegiate competition in the institution’s normal competitive region for the team, the institution is under an obligation to create an intercollegiate team within a reasonable period of time in order to comply with Part Three.

Conclusion

The three-part test gives institutions flexibility and affords them control over their athletics programs.  This flexibility, however, must be used consistent with Title IX’s nondiscrimination requirements.  OCR will continue to work with institutions to assist them in finding ways to
address their particular circumstances and comply with Title IX.  For technical assistance, please contact the OCR enforcement office that serves your area, found at http://wdcrobcolp01.ed.gov/CFAPPS/OCR/contactus.cfm.

²⁶ Under the 1979 Policy Interpretation, an institution also may be required to actively encourage the development of intercollegiate competition for a sport for members of the underrepresented sex when overall athletic opportunities within its competitive region have been historically limited for members of that sex.  44 Fed. Reg. at 71418.