In the current issue of the BYU Education Law Journal, author Patrick J. McAndrews proposes a strategy for universities' compliance with Title IX without cutting men's teams. Specifically, his three-part strategy includes long-term planning, roster management aimed at football, and aggressive surveying of students interest in order to demonstrate compliance with prong three. Though this last point does not seem to take into account that the Department of Education's 2005 Clarification, allowing surveys to serve as the sole evidence for compliance with prong three, has since been repealed, the other suggestions are worthy of consideration.
Additionally, two articles in the current Sports Lawyers Journal are related to Title IX. Author Andrew Weissler critiques the application of the three-part test to interscholastic athletics, and advocates for OCR developing a different interpretation of the effective accommodation regulation that takes the special circumstances of high schools into account. In another piece, Ephraim Glatt argues that courts should not defer to OCR's 2008 Letter that provides guidance on what counts as an athletic opportunity for purposes of Title IX. He argues that factors such as athleticism and injury rates counsel in favor of counting competitive cheer as a sport for Title IX.
Patrick J. McAndrews, Keeping Score: How Universities Can Comply With
Title IX Without Cutting Men's Teams, 2012 BYU Educ. JL 111 (2012).
Andrew J. Weissler, Unasked Questions: Applying Title IX's Effective Accommodation Mandate to Interscholastic Athletics, 19 Sports Law. J. 71 (2012).
Ephraim Glatt, Defining "Sport" Under Title IX: Cheerleading, Biediger v. Quinnipiac University, and the Proper Scope of Agency Deference, 19 Sports Law. J. 297 (2012).