BODY: A commission appointed
by the Bush administration is poised to propose profound changes in Title IX,
the federal law that forbids sex discrimination at schools and universities
receiving federal funds.
The Commission on
Athletic Opportunity has received relatively little attention, though it does
its work in public and its proposals could reverberate at virtually every
educational institution in the country.
The 15-member commission held a meeting in Philadelphia two weeks ago
at which members offered broad outlines of the kinds of changes they would like
to see, especially in how the underlying regulations of Title IX apply to
college sports. What emerged was a clear consensus to recommend new rules for enforcement of Title IX at its next meeting Jan. 8.
The notion of any change in the law that
revolutionized women's sports has fueled anger among women's groups. A coalition
of groups will gather in Washington today at the Leadership Council on Civil
Rights to plan protests when the commission meets to vote on its proposals in
preparation for its final report, due Jan. 31. The National Coalition for Women
and Girls in Education will hold a teleconference Thursday to brief reporters on
what it calls bias and flaws in commission work.
These next few weeks will be crucial ones behind the scenes at the
Department of Education, where staff members are putting flesh and bone to the
broad-stroke proposals commission members floated two weeks ago. Time remains
for coalitions to form behind particular proposals, though commissioners are
limited in how much they can do by e-mail and phone as all commission meetings,
by law, must be public.
Several proposals
center on changing the principle of proportionality, which says the percentage
of a school's athletes who are female should mirror the percentage of women in
the student body. If a college is 56% female -- the national average -- then
about 56% of its athletes should be women.
Sports for women and girls have become a part of the national culture
since Title IX's passage in 1972. About 2.7 million girls play high school
sports -- nine times more than in 1971. The number of women in Division I
college sports has grown from 26,461, when the NCAA took over women's sports in
1981, to 62,677 in its most recent count. More males still play at both levels:
3.9 million in high school and 84,284 in Division I colleges.
Title IX has led to an increase not only in numbers but in
talent and interest -- to the rise of stars such as Mia Hamm and the formation
of professional sports leagues such as the Women's National Basketball
Association and Hamm's Women's United Soccer Association
But advocates of lower-profile men's sports such as
wrestling fault Title IX for forcing the elimination of more than 400 men's
teams as colleges tried to balance the numbers of male and female athletes.
Ideally, college athletics administrators say, they'd add women's teams without
cutting men's, but some athletic departments don't have the money to do that.
Women's groups say most colleges that add
women's teams don't drop men's teams. But the Bush administration also has
listened closely to backers of men's teams.
It appears likely the administration will embrace some form of the
proposals to make proportionality more flexible. President Bush campaigned
against "strict proportionality" when he ran in 2000. Education Secretary Rod
Paige charged the commission with assessing whether Title IX works to promote
opportunities for male athletes as well as for females.
'Sky is the limit'
"There is
almost a sky-is-the-limit sense to the proposals" being discussed by the
commission, says Marcia Greenberger, co-president of the National Women's Law
Center. "It is shocking to see this commission throw out 30 years of progress in
such a casual way."
Many commission
members see it far differently. Many are college administrators who say they
know firsthand the current rules are too hard to understand and too often hurt
men's teams. Women's groups say that's nonsense -- and that huge expenditures on
football and men's basketball hurt minor men's sports and women's sports
alike.
The arguments are old ones. What's
new is the prospect of real change in rules that were written in 1979 and that
courts have rendered bulletproof in a series of legal challenges since.
Title IX forbids sex discrimination in all
programs at schools that get federal aid. Medical schools and law schools have
long since complied. The continuing controversy is almost exclusively about how
Title IX applies to sports, although the 35-word statute makes no mention of
sports.
When St. John's University in New
York City dropped its small-time football program last week, it said one reason
was that its female enrollment has risen to 58%. The decision was less about
dollars than numbers: Under current regulations, one way St. John's can comply
with Title IX is to make sure that about 58% of its athletes are women -- which
is harder to do with a roster of 62 football players.
Critics of Title IX say proportionality is a quota.
Proponents call it central to the meaning of the law. Critics say
proportionality has been the blunt instrument used to kill about 170 wrestling
teams. Proponents say if colleges with big-time, albeit revenue-producing,
football programs reduced their football scholarship limit from 85 to 60 and
stopped paying coaches $ 1 million a year and more, they could easily afford
wrestling and gymnastics teams.
Commission
member Julie Foudy, captain of the U.S. women's soccer team, suggested that the
commission urge colleges to curb expenditures in the "arms race" in football and
men's basketball. Other commissioners objected that it would amount to an
antitrust violation to suggest that salaries be held in check.
Several proposals tackled the lightning rod of
proportionality, which is the first part of a three-part test that the Education
Department's Office of Civil Rights uses to measure whether a school meets Title
IX's participation requirements. A school must pass one part of the test to
comply.
The first part is the
by-the-numbers test that says the percentage of female athletes should be
proportional to the percentage of women in the student body. No number on the
books says how close a school should be, but courts have often pegged it as
being plus or minus 1%.
The other tests
are harder to measure: The second says a school must show a history and
continuing practice of adding women's sports. The third says a school must
demonstrate that the athletic interests and abilities of the women on its campus
are fully and effectively accommodated.
Defenders of Title IX say proportionality can't be a quota because
there are two other ways to comply with the law. Commission member Gene
DeFilippo, the athletics director at Boston College, proposes that a new policy
statement be drafted to clarify what each of the three tests means.
A 1996 clarification letter from the
Department of Education referred to the first test as a "safe harbor." Critics
of Title IX say it has emerged as the safest way for a school to ensure it won't
be sued for discrimination. Commission member Deborah Yow, the athletics
director at the University of Maryland, says her school lawyers tell her to use
the first test because the other two are too vague: "We need to be able to tell
what the target is without legal degrees."
The commission held four town meetings across the country and heard
testimony from dozens of witnesses, including men who felt they had been denied
opportunities by the unintended consequences of Title IX.
It was against this backdrop that commissioners sat around
a large table in Philadelphia this month and offered their proposals on reform.
No one suggested leaving Title IX alone, and several zeroed in on the first
test:
Co-chairman Ted Leland, the
athletics director at Stanford University, proposed that a new test count
"opportunities" rather than actual athletes as one way of determining
proportionality. That way coaches of men's teams could keep non-scholarship
athletes, if they chose. His was the first of several proposals predicated on
the notion that men have more interest in sports than women.
Maryland's Yow suggested changing the proportionality rule
so that male and female athletes be split 50-50 regardless of enrollment
figures, and that "wiggle room" of 7% be built in. Under this formula, if a
school's female enrollment was 58%, it could still meet the first test if 43% of
its athletes were female -- 50% minus 7%.
"The idea that you can measure interest by undergraduate enrollment is
not logical," Yow says. "We don't hold elementary ed and engineering schools to
that standard."
University of Iowa
athletics director Bob Bowlsby proposed that participation rates in a given
region's high schools be used as a barometer for colleges. If 42% of the high
school athletes are female, he suggested that colleges in that region be
required to have 45% of their athletes be women -- 3% better than the feeder
system. Foudy counters the proposal would freeze discrimination in place.
Brown University made similar arguments about
differing levels of interest a decade ago in a landmark Title IX case -- and
lost. Courts have almost universally accepted the three-part test since its
introduction in 1979.
What happens to
these precedents if the principle of proportionality is substantially changed by
the Bush administration?
Brian Jones, the
Department of Education's general counsel, says courts would have to decide
cases based on the new rules -- and there could be different outcomes as a
result. "The department could issue new regulations or a new letter of
clarification," Jones says.
Jeffrey
Orleans, executive director of the Ivy League, was among those who helped write
the original regulations in 1979. He says when the government drafts a
reasonable interpretation of a statute, it leaves an opening for the government
to change its mind. The key, he says, is whether new policies are reasonable
interpretations.
Jocelyn Samuels, the
National Women's Law Center's educational director, says courts would throw out
new rules like those proposed. "That could take years," she says. "It would be
deeply unfortunate if we have to go down that road."
Samuels is highly critical of the role played by
ex-officio commission member Gerald Reynolds, assistant U.S. secretary of
education for civil rights, whose job it is to enforce Title IX. Reynolds
offered a proposal that rules be considered for private financing of college
teams, citing a case in which Marquette University dropped its wrestling
program, though alumni were willing to pick up the cost.
"The Department of Education staff is not merely
influencing the commission," Samuels says, "but is actively pushing it in the
direction of drafting new policies."
Reynolds, who has a history of opposing gender and racial preferences,
has been a controversial figure since Bush selected him. USA TODAY has requested
an interview since before Reynolds was appointed in April. Reynolds agreed to an
interview two weeks ago, but staff for the Department of Education later said he
would not be available until after the commission completes its work.
Panel faces critics
What all this means for the law credited with revolutionizing women's
sports in the USA depends on whom you ask. Title IX proponents say the kinds of
changes being discussed would amount to repeal of the law. Advocates of men's
minor sports say the proposals make good sense but don't go far enough.
Michael W. Moyer, executive director of the
National Wrestling Coaches Association, is in favor of what he calls "a
common-sense approach to giving colleges more flexibility" in meeting Title IX.
"But we had hoped to see proportionality abolished altogether."
Moyer's group is among a coalition of coaches suing the
Department of Education in an attempt to get the current Title IX regulations
struck down. On the day in June that Paige named the commission, he said the
place to settle complaints about Title IX was an open forum rather than the
courts.
Advocates of Title IX immediately
castigated the commission as proof that the Bush administration was out to roll
back the law. Critics mostly held their fire during the summer and fall. "We
wanted to give them the benefit of the doubt," Samuels says.
The first real fireworks came last month. Women's Sports
Foundation executive director Donna Lopiano had publicly called the commission a
sham and urged its members to resign. When Lopiano appeared as a witness at the
fourth town hall meeting in San Diego, commission member Tom Griffith, the
general counsel at Brigham Young University, pointedly asked her to retract her
contention. She pointedly refused.
The
arguments are bound to get louder in the days and weeks ahead. That is the
history of Title IX. "These are the same arguments we have heard for 30 years,"
Greenberger says. "I think we could be entering a very unfortunate period of
uncertainty."
Commission members
The Commission
on Opportunity in Athletics was named by Education Secretary Rod Paige last
June. Critics say the makeup of the commission is unfair because 10 of its 15
members come from NCAA Division I-A football schools (those with the biggest
programs), which they say have a vested interest in changing Title IX.
Critics also suggest that the commission was
named in June and given a deadline in January so proposals for change would come
fast -- but not before the November election. Commission co-chair Ted Leland
says he and his fellow commissioners are making a good-faith effort to improve a
good law: "We all believe in Title IX. We want to make it even better."
Women's National Law Center co-president
Marcia Greenberger says she doesn't question the commission's honesty or its
good intentions. "Too many of them are college administrators," she says. "Their
world view is one-sided. Of course they don't like the regulations -- they are
the ones being regulated."
Commission
members:
* Co-chair Cynthia Cooper,
ex-WNBA player and coach
* Co-chair Ted
Leland, athletic director at Stanford University
* Percy Bates, education professor at University of Michigan and its
faculty representative to the NCAA
* Bob
Bowlsby, athletic director at University of Iowa
* Gene DeFillipo, athletic director at Boston College
* Donna de Varona, U.S. Olympic Committee member and
two-time gold medalist
* Julie Foudy,
president of the Women's Sports Foundation and U.S. women's soccer team
captain
* Tom Griffith, general counsel at
Brigham Young University
* Cary Groth,
athletic director at Northern Illinois University
* Lisa Graham Keegan, CEO of the Education Leadership Council and
formerly Arizona's superintendent of public instruction
* Muffet McGraw, women's basketball coach at Notre Dame
* Rita Simon, professor at American
University's School of Public Affairs
*
Mike Slive, commissioner of the Southeastern Conference
* Graham Spanier, president of Penn State
* Deborah Yow, athletic director at University of
Maryland
Ex-officio members from the
Department of Education:
* Gerald
Reynolds, assistant secretary for civil rightsi
* Brian Jones, general counsel
*
Sally Stroup, assistant secretary for postsecondary education
GRAPHIC: GRAPHIC, Color, Keith Simmons, USA TODAY,
Source: NCAA (ILLUSTRATION); GRAPHIC, Color, Marcy E. Mullins, USA TODAY,
Source: NCAA (LINE GRAPH); PHOTO, B/W, Grant G. Halverson for USA TODAY;
GRAPHIC, B/W, Marcy E. Mullins, USA TODAY, Source: National Center for Education
Statistics (LINE GRAPH); Strong support: Julie Foudy, captain of the U.S.
women's soccer team, is a member of the commission that is reviewing Title
IX.
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