An Uneasy Step for Title IX

The divergent arguments about Title IX have been made. The side suing for the federal law to be changed contends gender equity in athletics has resulted in the elimination of too many men’s teams. Women’s sports advocates say the only way to sustain their major advances in the last 30 years is to remain strongly committed to the letter of the law.

After national hearings conducted by a special Title IX commission, both points are well represented in a formal report that is due on the desk of Education Secretary Roderick R. Paige on Wednesday. Paige has not set a timetable to act on the report, but whatever he does isn’t likely to fully satisfy either side. Experts predict he will not attempt to change the law, which would require congressional action, nor will he create new regulations, which would have to involve public notice and comment.

Far more likely, watchdogs say, is a subtle but substantial in-house policy adjustment in how the law is interpreted.

The education department houses the Office for Civil Rights, which enforces Title IX. Paige’s position of power gives the Bush administration, which has not been a friend of laws or policies it views as quota-driven, to relax the stricter interpretation of Title IX favored during President Clinton’s terms.

Paige can do that simply by instructing his staff to be more lenient on Title IX’s so-called proportionality prong -- which says schools can reach compliance by distributing athletic opportunities and resources to men’s and women’s departments based on the percentages of student enrollment.

“This may result in a letter of clarification,” Department of Education spokeswoman Susan Aspey said. “It is obviously a passionate issue on both sides. No one would argue that Title IX has not been a resounding success in expanding opportunities for female athletes, but points have been made about enforcement being way off base and men’s opportunities being cut and reduced. This commission was established to examine the law, the way it’s been enforced and how it can be changed.”

Although schools also can comply with Title IX by proving a history of expanded opportunities for women or meeting the interests and abilities of women on campus, most athletic administrators opt to clear themselves of legal threats or penalties of lost federal funding through proportionality -- because hard numbers can be evidence. The average college’s enrollment is 55% female, meaning, under Title IX, the school is charged with providing women a similar ratio of roster spots and athletic funding.

“I’d like to see proportionality abolished, but any flexibility they allow on it is a step in the right direction,” said Michael Moyer, executive director of the National Wrestling Coaches Assn., which, along with gymnastics, track and field and swimming associations, has filed suit in U.S. District Court that argues male athletes are being discriminated against by proportionality compliance.

Moyer suggests schools poll students on their interest in athletics, then provide sufficient opportunities based on those figures. Not doing that, he said, has led to situations where schools have roused inexperienced women to fill rosters in some sports while denying opportunities to talented male athletes.

In a particularly troubling example, Moyer cites Marquette’s dropping its wrestling team two years ago in order to comply with the proportionality prong -- even though the team was funded by outside donors. Since 1972, when Title IX became law, Moyer says 434 men’s wrestling programs have been eliminated, and in the last decade, 90 men’s college track and field programs.

The wrestling coaches’ lawsuit caught the Bush administration’s eye, prompting Paige to form the 15-member Commission on Opportunity in Athletics last June. The panel included five athletic directors, three former standout college athletes, two school presidents, a coach and a conference commissioner.

“The commission was formed so [the Bush administration] can say it’s seeking an equitable and proportional balance, but what they absolutely intend to do -- justifying lesser numbers -- will cheat girls and women,” said Eleanor Smeal, president of the Washington D.C.-based Feminist Majority and a former three-term president of the National Organization for Women.

Chaired by Stanford Athletic Director Ted Leland and former WNBA star Cynthia Cooper, the COA voted, 11-4, not to drop the proportionality prong. But, with one panelist absent, it split, 7-7, on a proposal that would make schools compliant if they earmarked 47% of their athletic resources to women -- forwarding that vote in its report to Paige.

The committee also recommended removing walk-on male athletes and those 23 years or older or married (a heavily female group) from the proportionality equation while providing more flexibility to administrators attempting to meet the standard.

The report, finalized with editorial changes by commission members late last week, has rekindled controversy as a private circulation of drafts has made the rounds. Critics say it inaccurately portrays a consensus on adjustments that would weaken the law. Leland responded by saying he is being careful to assure the report “reflects the debate.”

President George W. Bush’s stated dislike of “strict proportionality” in the law, his stance that a University of Michigan admissions affirmative action program is an unconstitutional “quota system,” and his appointment of conservative judges have led Title IX analysts to predict Paige’s handling of the law will be a reflection of his boss’ thinking.

Smeal said she has seen it before, when the Reagan administration expressed support of a 1984 Supreme Court decision -- Grove City College (Pa.) vs. Bell -- that weakened Title IX by ruling the law only applied to university programs receiving federal funds, not necessarily athletics. It took 1988 civil rights legislation passed by Congress to reverse that position and hold universities to all anti-discriminatory standards.

Those most familiar with Bush say he has a gut reaction against perceived quotas, despite attempts by National Security Advisor Condoleezza Rice and Secretary of State Colin Powell to sway him. Both publicly differed with the president’s position on the Michigan case -- he is critical of the university’s policy to award extra undergraduate and law school admission points to minorities.

Paige, whose work as superintendent of the Houston Independent School District caught Bush’s attention and led to his nomination as education secretary, is not bound to act on the committee’s findings as he determines Title IX’s future.

“The administration is going after everything it perceives to have a quota attached to it,” said a top aide of one of Washington’s most powerful Democrats. “They clearly have an agenda, one that could potentially disenfranchise a lot of people.”

A group of senators, including Senate Minority Leader Tom Daschle (D-South Dakota), Hillary Rodham Clinton (D-N.Y.), Patty Murray (D-Wash.) and Edward Kennedy (D-Mass.), are poised to criticize the Bush administration should Paige enact changes viewed as weakening Title IX -- even if the actions are not legislative. The senators are holding their tongues for now, but they expressed their support for Title IX at this month’s National Girls and Women in Sports Day.

The Bush administration “is probably feeling a little nervous about going too far on this,” said a top aide of Washington’s most powerful Democrats.

If there is a move to become more lenient on the proportionality prong, the top aide said, there would be fewer hurdles to prevent that policy change, “but we’ll definitely shine the light on it.”

“For now,” the aide said, “we can’t know what we’ll do until we see their action.”

Still, there is resignation among Title IX protectors that the potential legal challenges to Paige’s predicted softening of proportionality will be stalled in court while women suffer losses of athletic opportunities and scholarships.

Smeal predicts Paige will eventually make the bold move of seeking changes in the regulations on proportionality.

“I’ve followed this for 30 years. I’d be a dumb ol’ dog if I didn’t see what they’re trying to get away with,” she said.

Terry Crawford, the veteran men’s and women’s track and field coach at Cal Poly San Luis Obispo, said she, like many other Title IX proponents, is wary of any change. “I’m hoping for the best, but not totally trusting that any changes will remove the negatives without touching the positives,” she said.

Crawford, whose first coaching job as women’s track and field leader at Tennessee was a result of Title IX’s creation, said the bleak economic climate and college sports’ ongoing “arms race” to beef up revenue-producing sports such as football and men’s basketball have left nonrevenue sports vulnerable.

“I’m hopeful this will put schools in positions where they will not feel compelled to cut men’s sports in order to comply, but this may not help restore men’s sports that have already been cut,” Crawford said. “Escalating costs in athletic budgets are rampant. And with this insidious arms race, financing issues and alumni concerns going on, I fear that instead of stepping back from it and looking at the idea of fairness across the board, nonrevenue-producing sports will remain in a perilous position.”

Crawford said as coach of a nonrevenue-producing men’s sport and a women’s sport that has provided opportunity where there once was none, she is sympathetic to both sides in the Title IX debate.

“There are many schools walking the tightrope of compliance,” she said. “Title IX did not bring a leap to comply. It has been a rocky road to get here. And still, proportionality is treated like a speed limit. If it’s 55 mph, people hedge that. If it’s 65, they hedge that.

“A strong case can be made that enforcement by numbers is not fair, but history has shown you need a strong method, like hard numbers, to keep Title IX fair. It’s still a sticky wicket.”