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Federal Document Clearing House Congressional Testimony
June 27, 2002 Thursday
SECTION: CAPITOL HILL HEARING TESTIMONY

LENGTH: 2349 words

COMMITTEE: SENATE HEALTH, EDUCATION, LABOR AND PENSIONS

HEADLINE: TITLE IX: BUILDING ON 30 YEARS OF PROGRESS

TESTIMONY-BY: ARTHUR L. COLEMAN

AFFILIATION: NIXON PEABODY LLP

BODY:
STATEMENT OF ARTHUR L. COLEMAN NIXON PEABODY LLP WASHINGTON, D.C.

COMMITTEE ON SENATE HEALTH, EDUCATION, LABOR AND PENSIONS

JUNE 27, 2002

Mr. Chairman and Members of the Committee:

Introduction

Thank you for providing me with the opportunity to testify today regarding Title IX of the Education Amendments of 1972, which is a landmark civil rights law that was passed by Congress 30 years ago to eliminate sex discrimination in all aspects of American education-in the classroom, in the hallways, and on the athletic fields. Protecting both girls and boys from discrimination, this law operates to ensure that we do not make decisions in any facet of education based on overbroad generalizations or stereotypes. Equal opportunity in education is, at its core, about giving all of our students the tools and the range of choices that they deserve so that they can chart their own course-to become another Sally Ride in space or Mia Hamm on the soccer field.

This principle has particular resonance with me-not just because I am former federal official and now counselor to education institutions, but also because I am the proud father of a six- year old girl and year-and-a-half old little boy. It was not too long ago that I was talking with my daughter Kate about what she wanted to be when she grew up, and she quickly informed me that she wanted to be a nurse. We talked about what an important job that was and how she could do many good things for people as a nurse. I then, almost in passing, asked about whether she had thought about becoming a doctor. Without hesitation, she advised, "Of course not." I was quickly told that "girls are nurses and boys are doctors." Needless to say, we talked a bit further about how girls-and boys-could be anything they wanted to be, if they just made the effort.

When I am not doing my most important job of being a parent, I am an attorney with Nixon Peabody LLP here in Washington, D.C., where I work with states, colleges and universities, school districts, and other educational providers to help them understand federal legal requirements in the context of their educational objectives and to structure policies and programs that are most likely to comply with federal laws-improving educational outcomes for all students along the way. I continue to believe now-as I did when I served as Deputy Assistant Secretary for Civil Rights in the Department of Education [the Department] under the leadership of Education Secretary Richard Riley-that the federal nondiscrimination laws, properly understood, are grounded in sound educational practice.

As a consequence, there is seldom any one cookie-cutter way to achieve compliance. Under Title IX, as elsewhere, schools should be and are given a range of choices about methods for achieving legal compliance that make sense in their particular context and setting. The only choice that they are not given is whether to comply. On this point, Title IX is clear: "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance."

In my over six years of service in the Department, I focused a significant amount of my policy and enforcement responsibilities on issues related to Title IX, and developed a very keen awareness of the successes for which we should all be grateful, and the challenges that lie ahead as we work to eliminate discrimination in all of its forms from our schools. In the context of the achievements and the unfinished work to be done, there are some very clear-indisputable-foundations that must be understood in order to have any meaningful discussion about or accurate understanding of Title IX. I want to focus my testimony on those foundations because, simply stated, we should be clear about the facts before we begin evaluating the record of Title IX. (This is especially true where the rhetoric surrounding Title IX often does not match reality.)

What We Know About Title IX

1. Title IX Covers All Aspects of Education: Title IX's Coverage Extends to the Classroom, the Hallways and the Athletic Fields of Our Schools that Receive Federal Funding

As we celebrate the 30'h Anniversary of this historic legislation, some in the media and elsewhere have tended to describe Title IX as an athletics law. And while it surely plays a role with respect to athletics, it is important that we not lose sight of the critical role that it plays in other areas of education. We no longer see education gaps in many areas, as a result of this law. From the course-taking patterns of high school girls in upper level math and science to the college completion rates of young women, we've witnessed major progress regarding student achievement, and have reversed patterns that were once driven by prevalent and different expectations for men and women.

We've seen major strides in defeating stereotypes about what women can achieve in "men's occupations," with dramatic increases in the numbers of women entering the medical profession, the legal profession, and certain Ph.D. programs. By the same token, doors have opened to men in professions that were once considered "female professions" as a result of efforts tied to Title IX enforcement and related laws. Moreover, without Title IX, we wouldn't have the kind of focus and enforcement of principles that prohibit sexual harassment of students and teachers in schools. The issue of sexual harassment is a very real one-for girls and boys. It is one on which there has been substantial focus and progress, but as in so many other areas, there is still much work to do.

2. There is Substantial Common Ground: Title IX Standards Have Stood the Test of Time, Having Enjoyed Bipartisan and Widespread Federal Court Support for Decades.

Title IX is one federal law that has enjoyed bipartisan support for three decades. In both Republican and Democratic Administrations, on both sides of the aisle in Congress, and in the overwhelming majority of federal court opinions on the subject, we have seen a repeated reaffirmation of the principles that guide the Department. Sen. Hatch once observed that there were few, if any, Senators who did not want "Title IX implemented so as to continue to encourage women throughout America to develop into Olympic athletes, to develop in educational activities or in any other way within our schools of higher education." I would venture that it is likely that that sentiment is as true today as it was when he made the statement in 1984 on the Senate floor.

Corresponding to this long-standing commitment to equal opportunity are the long-standing requirements that both guide the work of the Office for Civil Rights and help shape the opinions of the federal courts, which will in appropriate cases look to the interpretations of the Department for guidance. Guided by a law passed in 1972, and upon regulations signed by President Ford in 1975, which were reviewed and approved by Congress, OCR has addressed the requirements of Title IX in particular contexts-from admissions to counseling, from athletics to sexual harassment. I would like to briefly address the latter two areas, in which the Department has invested significant effort to help institutions ensure that the promise of Title IX is a reality for all students today.

First, with regard to gender equity in athletics, the Department has published several letters of guidance and clarification regarding the application of Title IX-to help explain and describe the implementation of the standards that have been in place since the late 1970s. During my tenure with the Office for Civil Rights, we very intentionally did not seek to revise or modify longstanding requirements. After hearing from colleges and universities that inconsistency in enforcement and clarity was the issue, we worked to provide the assistance requested. Instead of re-writing a 1979 policy on Title IX and intercollegiate athletics (which had followed a review of more than 700 comments on a previous draft), we determined that if it wasn't broken, there was no need to fix it.

From some quarters, we heard then -as we are hearing yet again- that the "three part test" that comprises one part of the Title IX standard in athletics is merely a quota law, that it requires strict proportionality between men and women on campus, and that, in the words of one news analyst this past Sunday morning, it requires "dogmatic statistical parity." My response to those claims is simple: Before we attack a law, we should do our homework. In this case, the facts are these:

- Department policies are clear: Title IX standards in the area of athletics do not mandate quotas or statistical parity at any institution. The Department has for years made this point, and in its most recent policy clarification said: "There are three different avenues of compliance," and "institutions have flexibility in providing nondiscriminatory participation opportunities to their students, and OCR does not require quotas."

-Federal courts have consistently affirmed Department policies. In multiple federal circuits, federal appellate judges have affirmed the wisdom of the Departments athletics standards, and have consistently rejected claims that they imposed illegal quotas.

- Actions by colleges and universities prove that proportionality is not the driving force of Title IX enforcement, as it is not the avenue that most schools choose when deciding how to comply with Title IX. While at the Department, I directed a study to determine, in fact, the actual choices that were being made by schools when faced with complaints of discrimination and when further work was needed. The results of that study-published in a 1996 GAO report-show that (in cases where schools had made compliance decisions) approximately seventy-five percent (75%) of the schools coming into compliance with Title IX pursuant to work with OCR were not electing the proportionality prong, but rather were choosing one of the two other avenues to achieve success - with a good faith expansion of opportunities to meet the needs of the underrepresented sex, or by effectively accommodating the interests and abilities of the underrepresented sex.

In fact, another report issued by the GAO (in 2001) found that while complying with Title IX was often one reason behind institutions' decisions to offer or not offer different athletic opportunities for men or women, the most often cited factor was the level of interest in the particular sport.

Second, in the area of sexual harassment, and in the wake of incidents where it was clear that schools were overreacting to claims of harassment just as they were at times not paying enough attention to the issue, the Department published guidance to conform with existing federal court legal standards, to help explain those standards, and to describe the steps that schools should take on the front end to help avoid problems. In an effort to closely track the consensus among federal courts, and to adhere to Supreme Court precedent in the area, the Department published in 1997 and then again in 2001 (in the wake of new Supreme Court decisions) policy guidance for schools, which are obligated under Title IX to address issues of harassment on their campuses. This is one of several areas where we at the Department recognized that the old adage fully applies:"An ounce of prevention is worth a pound of cure."As a consequence, the Department's Office for Civil Rights partnered with schools, states, and organizations like the National Association of Attorneys General to provide, in writing and in person, technical assistance designed to assist schools in their efforts to ensure that they comply with federal law, while at the same time helping promote the kind of learning environment in which all students are welcome and can fully participate.

3. Sound Educational Results: Reasonable, Practical Avenues for Meeting the Requirements of Title IX Are In Place.

The final point that I would like to make expressly is one that is implicit in my review of OCR's work above. Namely, federal law and OCR's practices conform to the goal of providing significant flexibility to institutions that must address their federal legal obligations. OCR and the courts have demonstrated a keen understanding of the complexities sometimes involved in achieving compliance, and have allowed a wide range of choices with reasonable time frames for implementing those choices. Thus, both in substance and as a matter of process, reasonable and practical standards guide the enforcement of Title IX.

I would also like to add, at this point, that it was my distinct privilege to work with the hundreds of career employees in the Office for Civil Rights and in the Department during my tenure at the Department. What I found as I came to know them was that they were a group of individuals committed to the principles of equal opportunity for all students, regardless of background, and that they had a healthy respect for the range of legitimate institutional interests that must be considered and valued as we all work together to achieve the goals of our nondiscrimination laws.

Those staff worked diligently to improve services, identify problems and correct them as they surfaced, and to find ways to partner with educational institutions to create a better understanding of the common ground and common sense solutions that, in fact, exist with respect to Title IX and other federal laws.

Conclusion

Mr. Chairman, we have much to celebrate on this 30th Anniversary of Title IX, but as I learned first-hand from my six-year-old daughter, our work is not done. It is imperative that we continue to work together around the shared goals embodied in Title IX to ensure that our daughters and our sons will have as many doors as possible open to them in the future-in the classroom and on the athletics field.

Thank you.



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