[1398] in Discussion of MIT-community interests
Chronicle article: Title IX Commission Will Urge Changes in Law to Protect Men's Teams
daemon@ATHENA.MIT.EDU (Peter Shulman)
Thu Feb 20 08:56:13 2003
Date: Thu, 20 Feb 2003 08:55:37 -0500
From: Peter Shulman <skip@MIT.EDU>
To: MIT-Talk@MIT.EDU
This article from The Chronicle of Higher Education
(http://chronicle.com) was forwarded to you from:
skip@mit.edu
The following message was enclosed:
This is an article about college athletics, Title IX, and
gender equality from this morning's Chronicle of Higher
Education.
The outcome of this report will certainly have an impact on
MIT's athletics program.
--**Peter
_________________________________________________________________
This article is available online at this address:
http://chronicle.com/daily/2003/02/2003022001n.htm
- The text of the article is below -
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Thursday, February 20, 2003
Title IX Commission Will Urge Changes in Law to Protect Men's
Teams
By WELCH SUGGS
Title IX guidelines should be changed to stop colleges from
cutting men's teams and male athletes. That's the central
finding of a draft report from a federal commission studying
gender equity in college sports.
The Chronicle obtained a confidential copy of the hotly
debated report, which contains very few proposals that would
directly affect women's sports at the college or high-school
level. However, the text of the 70-page document focuses on
the plight of male athletes, offering scant attention to
inequities that still plague women's sports.
The report, from the Secretary's Commission on Opportunity in
Athletics, was sent to commissioners on Friday, with comments
due today. A final copy of the report will be presented to
Roderick R. Paige, the U.S. secretary of education, next
Thursday.
The report praises Title IX of the Education Amendments of
1972 for expanding opportunities for women. It also criticizes
the Education Department's Office for Civil Rights for
inadequately enforcing the law.
"While everyone benefits from increased athletic participation
by girls and women, no one benefits from artificial
limitations on athletic opportunities for others," the report
states. "Title IX needs to be strengthened toward the goal of
ending discrimination against girls and women in athletics,
and updated so that athletic opportunities for boys and men
are preserved."
Mr. Paige convened the panel last summer to mark the 30th
anniversary of the law, which bans gender discrimination at
educational institutions receiving federal funds. The
commission's charge was to examine Title IX's impact on sports
and whether the law was working as intended (The Chronicle,
July 12).
After holding six meetings and hearing testimony from experts
and citizens alike, the commission assembled for a contentious
session here last month to debate its findings and
recommendations (The Chronicle, February 7). Although the
report praises the group's consensus building and cites many
instances of unanimity, the meetings often reflected deep
rifts between advocates for women's sports and others on the
panel.
During the final meeting, the commission's co-chairman, Edward
A. Leland, said the panel's job was not to adjudicate between
different data on participation gains for women and losses for
men.
"I don't think we ever agreed, 'These are a set of data we'll
agree with,'" said Mr. Leland, athletics director at Stanford
University. "We heard one guy, one expert in statistics, say
one thing; we heard another one say another."
However, the draft report says that "all agree that there has
been a troubling decrease in athletic opportunities for boys
and men." It cites a study by Jerome Kravitz, a Howard
University professor, who estimates that colleges dropped
1,290 to 1,434 teams from 1981 to 2001, meaning that by 2001
there were 57,000 fewer male athletes than there had been 20
years earlier. Gymnastics, swimming, and wrestling are among
the sports hardest hit.
In recounting the history of Title IX, the report also uses
language to describe how gender-equity guidelines have evolved
that is very similar to language contained in a lawsuit filed
against the Education Department by associations of coaches of
men's sports like wrestling and swimming. Judges in other
court cases involving Title IX have placed substantial weight
on Education Department policy interpretations that define how
the law applies to athletics. And federal appellate courts
have consistently upheld colleges' right to do away with men's
teams to comply with Title IX.
In their lawsuit, however, the coaches argue that the courts
should not have given so much credence to the department's
rules because they were never subject to public comment after
being issued, in 1979. The commission's report makes a similar
point.
Its 23 recommendations are grouped into four themes:
"commitment, clarity, fairness, and enforcement." In them, the
commission calls for the department's Office for Civil Rights
to do a better job of educating colleges about what the law
requires and, specifically, how private funds may be used to
preserve opportunities for male athletes.
The report also calls on the civil-rights office to make clear
that "cutting men's teams is a disfavored practice" and to
explore new ways of defining compliance with the law's
requirements on how participation opportunities ought to be
allocated to male and female athletes.
Under the 1979 rules, colleges have three options for showing
compliance, a standard known as the "three-part test": The
number of male and female athletes at a given institution must
be proportional to the number of male and female
undergraduates, respectively; an institution must have a
"history and continuing practice of program expansion" that
furthers women's interests; or an institution must prove that
it has "fully and effectively accommodated" the interests and
abilities of women on its campus.
A 1996 "policy interpretation" from the civil-rights office
describes the first choice as a "safe harbor" for compliance.
Advocates for men's sports, particularly the coaches in the
lawsuit, say that the second two options are false choices and
that under the Clinton administration, the Education
Department pushed colleges toward the first option, which
critics decry as a quota.
The commission's report calls on the department to find
various ways to de-emphasize the first test, such as counting
the number of "slots" offered by a college instead of the
actual number of participants, or getting rid of the
safe-harbor language and weighing all three options equally.
Either of those moves could give colleges incentives not to
drop men's teams.
Another proposal calls for colleges to eliminate "walk on"
athletes from the count of participants, defining walk-ons as
those who do not receive scholarships. How that proposal would
affect colleges that do not grant athletics scholarships is
not made clear.
Other measures, however, could actually have the opposite
effect. One proposal calls for "nontraditional" students to be
eliminated from the count of students used for the first test.
However, the first test counts only full-time undergraduates.
At a variety of colleges, including St. John's University of
New York, Temple University, and the Universities of
Minnesota-Twin Cities and Missouri at Columbia, most full-time
undergraduates over the age of 25 are men, so the new count
would skew the enrollment totals toward women, making
compliance with Title IX even more elusive.
In fact, the proposals that could form the basis of major
changes in policy are the vaguest. One calls for the Education
Department to examine new methods of compliance beyond the
three-part test, without saying how those methods would be
defined.
Another calls for colleges to use "interest surveys" to comply
with the three-part test, without specifying whether the
surveys would be used only to meet the third part of the test,
or any of its three portions. Rita J. Simon, a commissioner
and professor of law and public policy at American University,
said during the debate that she favored the latter.
Members of the commission complained at the final meeting that
they did not know enough about the possible outcomes of any of
the recommendations to endorse them in good conscience. The
report provides no more data to even guess at consequences of
the proposals, but it notes that more studies may be needed
before new policies are put forward.
Regardless, the report concludes that "it is clear that Title
IX enforcement requires reform in order to make the law more
clear, fair, enforceable, and truly open to all."
Recommendations from the Secretary's Commission on Opportunity
in Athletics, from a draft report published on Friday:
1. The Department of Education should reaffirm its strong
commitment to equal opportunity and the elimination of
discrimination for girls and boys, women and men.
2. Any clarification or policy interpretation should consider
the recommendations that are approved by this commission, and
substantive adjustments to current enforcement of Title IX
should be developed through the normal federal rule-making
process.
3. The Department of Education's Office for Civil Rights
should provide clear, consistent and understandable written
guidelines for implementation of Title IX and make every
effort to ensure that the guidelines are understood, through a
national education effort. The Office for Civil Rights should
ensure that enforcement of and education about Title IX are
consistent across all regional offices.
4. The Office for Civil Rights should not, directly or
indirectly, change current policies in ways that would
undermine Title IX enforcement regarding nondiscriminatory
treatment in participation, support services, and
scholarships.
5. The Office for Civil Rights should make clear that cutting
teams in order to demonstrate compliance with Title IX is a
disfavored practice.
6. The Office for Civil Rights should aggressively enforce
Title IX standards, including implementing sanctions for
institutions that do not comply. The Department of Education
should also explore ways to encourage compliance with Title
IX, rather than merely threatening sanctions.
7. The Department of Education should encourage educational
and sports leaders to promote male and female student interest
in athletics at the elementary and secondary levels to
encourage participation in physical education and explore ways
of encouraging women to walk on to teams.
8. The Department of Education should encourage educational
institutions and national athletic governance organizations to
address the issue of reducing excessive expenditures in
intercollegiate athletics. Possible areas to explore might
include an antitrust exemption for college athletics.
9. The Department of Education should encourage the redesign
of the Equity in Athletics Disclosure Act so that it provides
the public with a relevant and simplified tool to evaluate the
status of Title IX compliance in the nation's postsecondary
institutions.
10. The Office for Civil Rights should disseminate information
on the criteria it uses to help schools determine whether
activities they offer qualify as athletic opportunities.
11. The Office for Civil Rights should educate educational
institutions about the standards governing private funding of
particular sports aimed at preventing those sports from being
dropped or to allow specific teams to be added.
12. The Office for Civil Rights should reexamine its
regulations regarding the standards governing private funding
of particular sports aimed at preventing those sports from
being dropped or to allow specific teams to be added.
13. The Department of Education should encourage the National
Collegiate Athletic Association to review its scholarship and
other guidelines to determine if they adequately promote or
hinder athletic participation opportunities.
14. If substantial proportionality is retained as a way of
complying with Title IX, the Office for Civil Rights should
clarify the meaning of substantial proportionality to allow
for a reasonable variance in the relative ratio of athletic
participation of men and women while adhering to the
nondiscriminatory tenets of Title IX.
15. The Office for Civil Rights should consider a different
way of measuring participation opportunities for purposes of
allowing an institution to demonstrate that it has complied
with the first part of the three-part test. An institution
could establish that it has complied with the first part of
the test by showing that the number of available slots for men
and women, as demonstrated by the predetermined number of
participants for each team offered by the institution, is
proportional to the male/female ratio in enrollment.
16. In providing technical assistance, the Office for Civil
Rights should advise schools, as necessary, that walk-on
opportunities are not limited for schools that can demonstrate
compliance with the second or third parts of the three-part
test.
17. For the purpose of calculating proportionality with the
male/female ratio of enrollment in both scholarships and
participation, these ratios will exclude walk-on athletes as
defined by the NCAA. Proportionality ratios will be calculated
through a comparison of full or partial scholarship recipients
and recruited walk-ons.
18. The Office for Civil Rights should allow institutions to
conduct continuous interest surveys on a regular basis as a
way of (1) demonstrating compliance with the three-part test,
(2) allowing schools to accurately predict and reflect men's
and women's interest in athletics over time, and (3)
stimulating student interest in varsity sports. The office
should specify the criteria necessary for conducting such a
survey in a way that is clear and understandable.
19. The Office for Civil Rights should study the possibility
of allowing institutions to demonstrate that they are in
compliance with the third part of the three-part test by
comparing the ratio of male/female athletic participation at
the institution with the demonstrated interests and abilities
shown by regional, state, or national youth or high-school
participation rates or national governing bodies, or by the
interest levels indicated in surveys of prospective or
enrolled students at that institution.
20. In demonstrating compliance with the proportionality
requirement of the first part of the three-part test, the
male/female ratio of athletic participation should be measured
against the male/female ratio of an institution's
undergraduate population minus nontraditional students.
21. The designation of one part of the three-part test as a
"safe harbor" should be abandoned in favor of a way of
demonstrating compliance with Title IX's participation
requirement that treats each part of the test equally. In
addition, the evaluation of compliance should include looking
at all three parts of the test, in aggregate or in balance, as
well as individually.
22. The Office for Civil Rights should be urged to consider
reshaping the second part of the three-part test, including by
designating a point at which a school can no longer establish
compliance through this part.
23. Additional ways of demonstrating equity beyond the
existing three-part test should be explored by the Department
of Education.
* * *
Additionally, the commission deadlocked on whether to
recommend the following proposal:
Institutions governed by Title IX standards, as one approach
to meeting the standard of proportionality, should allot 50
percent of their participation opportunities for men and 50
percent for women. A variance of 2 to 3 percent in compliance
with this standard would then be allowed.
_________________________________________________________________
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http://chronicle.com
_________________________________________________________________
Copyright 2003 by The Chronicle of Higher Education
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