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Opinion

Title IX's original intent

| Saturday, July 19, 2003

Feminist groups will tell you Title IX, the 1972 federal law that prohibits schools that accept federal money from practicing discrimination based on sex, has created the boom in women's collegiate sports.

College wrestling, basketball, and track and field coaches, on the other hand, will tell you that Title IX -- i.e., the misenforcement of its rules by athletic administrators -- has created a gender-quota system that has killed hundreds of men's collegiate sports teams.

The Bush administration and the Department of Education announced July 11 that, after a review of the law and its effects, it was pretty much keeping Title IX the way it is, but would make sure colleges know all their options.

The decision thrilled Title IX's defenders but greatly disappointed Eric Pearson, chairman of the College Sports Council, an association of college coaches that had joined in a lawsuit arguing that the Department of Education had effectively created a gender-quota system whose victims were men. Though a judge dismissed their complaint in June, Pearson's group has asked an appellate court to consider their case.

I talked to Pearson Tuesday by telephone from Washington, D.C.

Q: Did President Bush and the Department of Education wimp out on Title IX?

A: The Bush administration caved in to the special interest groups that are led by the gender-quota advocates and trial lawyers that need the current policies to stay intact so they can continue to sue universities over Title IX compliance.

Q: Feminists are hailing this decision as a huge victory for Title IX's defenders. Is that true?

A: First of all, we fully support Title IX as the law was originally written. The law says you can't discriminate on the basis of gender. We believe that we're the ones upholding Title IX as it was truly intended. Currently, the feminists have had a victory for gender quotas. The Bush administration has put their approval on gender quotas. That is what our issue is over entirely -- the gender quota.

Q: The gender quota you don't like is the one that says women have to be proportionately represented on the athletic teams, as men are, in relation to the school's overall enrollment?

A: Yes.

Q: What was Title IX supposed to do?

A: Title IX was originally supposed to protect women from discrimination in medical school, law school and, to some degree, undergraduate admission. In the 1960s and late '70s, women often confronted discrimination in the admissions process. Then when Title IX was passed in 1972, there was a slow evolution toward creating a quota system, which it was never intended to be. In the Congressional Record, it is very clearly stated that it should never become a quota system.

Q: How did Title IX go into athletics?

A: In 1979, the three-part test went into effect. That pretty much started the focus on athletics.

Q: And the three-part test is what?

A: The three-part test says that the university, technically, is in compliance if it does one of three things. One is that its student body be proportionate to its athletic departments. That includes every athlete, and it includes every student that's an undergraduate, whether they're 50 years old or 20.

The second prong says you are in compliance if you have added a women's team in the last five years. The third prong is very vague and has never held up in court. It says you are in compliance if you are "meeting interest."

Q: In other words, if 10 women want to play badminton, you have to give them a team?

A: That's the way it could be read. If a group of women petition an administrator and say, "We want to start a women's lacrosse team," they have clearly demonstrated there's interest. If the administrator says, "Sorry, you can't play because you're girls," that's discrimination. And that's why Title IX exists.

THE COHEN CASE

Q: Was it the rules of Title IX or the interpretation of the rules by the administrators or the courts that made it the Frankenstein you say it is?

A: Well, it all starts with the interpretation by the Department of Education. The regulations are set up by the department and then they are interpreted by the courts. The most significant case to date is Cohen v. Brown (1992) .

Amy Cohen was a gymnast, and she sued Brown University because she wanted to get funding for her gymnastic team -- for uniforms, team travel, access to lockers. It was an entirely reasonable request.

Unfortunately, what came out of the case is that the court only focused on proportionality. ...

And from then on, most schools have focused only on proportionality. Also, the NCAA has been promoting a gender-quota study, so the NCAA has also been putting pressure on universities to come under compliance with proportionality.

The NCAA also promotes the practice of roster management, which is a numerical limit placed on men's squad sizes to lower the total number of men in an athletic department to comply with proportionality. It's a form of discrimination that is very widespread and very underreported. Most people just talk about the tragedy of programs being eliminated, but they're not focusing on the everyday discrimination that's happening with roster management.

Q: So instead of 50 guys on a football team, there are 40?

A: Right. Especially, it's really amazing to look at sports that have equivalents for both genders, like track and field. On the men's team, for example, they'll say you can only have 15 guys. Then they'll tell the women's coach you're not allowed to cut anybody. In fact, we want you get 30 women to come out for this team.

They're trying to comply with proportionality by doing this roster management. They're picking on the guys, and the guys are being punished because not enough women are going out for their teams. So if you have a lacrosse team, a track team or a swimming team for men and women, you don't get credit for that. You only get credit for the actual number of bodies that go out for a team.

That's why I say it's a strange world of enforcement. If a man shows up, and he's told to go because of his gender -- the wrong gender -- that's not discrimination. But if nobody shows up on the women's side, that's considered discrimination.

Q: So, what did the lawsuit filed by the National Wrestling Coaches Association against the Department of Education seek to do?

A: Well, we have said that the three-prong test actually is illegal because it has created a quota system, which according to the Congressional Record when they passed Title IX was specifically disallowed. So we're going back to the way the law was originally written and intended and saying this is not the way it was meant to be regulated.

Q: What is your best argument for enforcing Title IX's rules the way they were meant to be enforced?

A: We want to see the law continue to protect women, but not harm men. What you've got to provide is a little more flexibility to these administrators so they just don't have to count the numbers of their athletes.

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