Decision Retains Title IX Status Quo

The Department of Education and Office of Civil Rights agreed Friday that there should be no changes in Title IX, the 31-year-old landmark legal decision prohibiting discrimination based on gender that leveled the field for women in participation and funding in intercollegiate athletics.

The law applies to colleges and universities that receive federal funds and affects all programs, although most of the controversy surrounding Title IX has involved athletics.

A three-page letter released Friday and signed by Gerald Reynolds, assistant secretary for Civil Rights, stated the three-part test used by his office and the Education Department to determine whether schools were in compliance “has worked well.”

He said the letter explaining the decisions would be either mailed, faxed or e-mailed to universities throughout the country starting next week.

Reaction to the decision was swift and varied.

“It’s an enormous win for women and girls, and a lesson in the importance of vigilance and speaking out to keep these hard-won gains from determined opponents,” said Marcia Greenberger, co-president of the Washington-based National Women’s Law Center.

“There were those who had as their mission the weakening and dismantling of Title IX. Women in this country ... spoke loud and clear that Title IX is too important to take away. Fortunately the letter reflects that message.”

Eric Pearson, chairman of the College Sports Council, also Washington based, was disappointed by the news.

“This is window dressing to an already bad set of regulations,” Pearson said. “The Bush Administration has completely and utterly caved to the gender quota crowd. They haven’t changed a thing.”

Friday’s announcement came after a fact-finding investigation by a commission established by President Bush on June 27, 2002, as well as meetings and hearings across the country for proponents and opponents of Title IX.

Opponents felt too many universities were using the law as an excuse to eliminate men’s athletic programs. College wrestling was particularly hard hit, so much so a lawsuit was filed in 2002 by the National Wrestling Coaches Assn. saying the law discriminated against men. The suit was dismissed last month in federal court.

Proponents said the law provided the impetus for more women to take part in intercollegiate athletics. In a recent speech, NCAA president Myles Brand cited a survey that nearly 150,000 women participated in NCAA sports. Before the 1972 law was enacted, Brand said, fewer than 30,000 women competed in sports as opposed to 170,000 men.

To be in compliance, a school must a) provide intercollegiate-level participation opportunities for men and women substantially proportionate to their respective full-time undergraduate enrollments; b) have a “history and continuing practice of program expansion” for the underrepresented sex; or c) be “fully and effectively” accommodating the interests and abilities of the underrepresented sex.

During a media conference call Friday, Reynolds said many institutions saw the first test -- proportionality -- as the “safe harbor” for schools regarding enforcement. That confusion, he said, stemmed from a 1996 letter from the Education Department trying then to clarify what did and did not constitute compliance.

“The most common confusion was that one [test] was favored over the other two,” Reynolds said. “Schools picked up that language and picked up on conclusions that were not accurate.

“Now that we heard that had so much effect on the decision-making, we had to correct that.”

Reynolds said no part of the three-part test would have greater weight over the other two parts. He said a three-part test should give schools the necessary flexibility for compliance, and should consider which of the three best suits that institution’s situation.

In addition, the letter said the Office of Civil Rights decided that “nothing in Title IX requires the cutting or reduction of teams in order to demonstrate compliance ... and the elimination of teams is a disfavored practice.”

After its eight-month study, the commission delivered a series of recommendations to Secretary of Education Rod Paige in January on how to readdress Title IX. Among the suggestions were establishing new ways to portion out athletic scholarships to men and women, and removal of walk-on male athletes and those athletes 23 years or older (a predominantly female group) from the proportionality test.

But Paige decided to accept only the recommendations that were agreed on unanimously by the commission. That eliminated a large portion of the commission’s work.

There was speculation the Bush Administration had misjudged the depth of support for Title IX and was feeling pressure to leave the law alone, in light of next year’s presidential election.

That reasoning didn’t mollify Pearson. “They had a year with the Title IX commission where they heard that the system does not work,” he said. “We need a more fair and flexible approach that doesn’t harm men but continues to protect women. And here, the commission was a complete waste of taxpayer time and money.”

Valerie Bonnette, a San Diego consultant who founded Good Sports Inc., Title IX and Gender Equity Specialists, agreed with Pearson that the commission’s time was not well spent.

“They should have taken the money that they spent on the commission and the meetings, and used it to educate the population on the Title IX athletics requirements, which are unique under our civil rights,” Bonnette said.

“The three-part test is wonderfully flexible once people understand how it works. And not many understand the practical ramifications of how it works.”

Lisa Love, a senior associate athletic director at USC, said the Education Department and Office of Civil Rights made the only decision they could make.

“After listening to the discussions and reading the information, I would have been surprised if there had been a detour in the way [they] had pursued enforcement of Title IX,” Love said.