Legislative Update Special Report: Bush Commission Weakens Title IX in Sports

Phony Study Commission Issues Radical Recommendations

Concluding a six month "study" of Title IX, the so-called Secretary of Education's Opportunity in Athletics Commission adopted more than two dozen recommended policy changes that will dramatically weaken Title IX's goal of achieving equality in athletic programs in educational institutions. The proposed changes will allow schools to back away from Title IX's goal of equal support for women's and men's sports programs and, in effect, will render meaningless the most important objective of Title IX—that is, to overcome decades of discrimination and neglect of girls' and women's athletic programs. If the commission recommendations are implemented, ripple effects can be expected in academic and other programs designed to counteract systemic sex discrimination.

The commission was headed by Edward A. "Ted" Leland, athletic director at Stanford University and Cynthia Cooper, a former Olympic and Women's National Basketball Association star. Other members are: Robert A. Bowlsby, athletics director at University of Iowa; Deborah A. Yow, athletics director at University of Maryland at College Park; Percy Bates, faculty athletics director at the University of Michigan at Ann Arbor; Gene DeFillipo, athletics director at Boston College; Donna DeVarona, co-founder of the Women's Sports Foundation; Julie Foudy, captain of a national women's soccer team and president of the Women's Sports Foundation; Thomas B. Griffith, general counsel at Brigham Young University; Cary S. Groth, athletics director at Northern Illinois University; Lisa Graham Keegan, chief executive officer of the Education Leadership Council; Muffet McGraw, head women's basketball coach at Notre Dame; Michael L. Silve, recently appointed commission of the Southeastern Conference; Rita J. Simon, professor of law and public affairs at American University (and founder of the anti-feminist Women's Freedom Network) and Graham B. Spanier, president of Pennsylvania State University at University Park.

The commission's final report will be issued at the end of February after review by the Department of Education (DoE), but key recommendations were adopted by majority vote at its Washington, D.C. meeting January 29-30. Reportedly, Education Secretary Rod Paige is not only supporting these fundamental changes to Title IX, but wants even more radical changes, possibly requiring legislation. Many of the recommendations appear gender neutral at first glance, but will have far reaching consequences that will promote sex discrimination, rather than end it. Here are some highlights:

• Schools should conduct "interest surveys" to determine in advance girls' demand for different types of sports; this activity, in itself, would be a deterrent to first time sports participants and would have a particularly discouraging effect on primary and secondary school girls.

• Another recommendation is a clever "sleight of hand" allowing schools to count "ghost slots" on women's teams—positions that are never filled by any girls or women—and, at the same time, gives permission to schools to overlook male students who are identified as "walk-ons" (not specifically recruited). These provisions would allow schools to misrepresent the participation rates of boys and girls and thereby avoid any effort to gender-balance their financial support of athletic programs.

Press Reports Are Misleading

The National Organization for Women and allies in the women's rights advocacy community were appalled to see how openly the commission operated to limit accurate information about Title IX's impact on both girls'/women's and boys'/men's athletic programs. We were even more shocked to see how brazenly the commission has adopted recommendations that clearly override Title IX's mandate for gender equity—despite their frequent protestations to the contrary. As testament to the power of the right wing to influence the media, the press unquestioningly accepted the commission's assessment of the proposed changes as "moderate" when, in fact, they are radical and will have far reaching negative effects on gender equity.

NOW, with the National Coalition of Women's Organizations, called a hasty press conference on January 31 to denounce many of the proposed changes and to criticize the press's easy acceptance of the commission's false spin on the "moderate" effect of the recommendations.

NOW Membership Vice President Terry O'Neill told assembled reporters, "George W. Bush has mounted a double-barreled assault on Title IX of the Education Amendments of 1972, the law that requires federally-funded schools and colleges to provide equal education opportunities to girls and women. The recommendations adopted on January 30 by the group appointed to "review" Title IX were not moderate, as some news reports suggested—they were an outright attack on Title IX."

National Women's Law Center co-president Marsha Greenberger called upon the Bush administration and Education Secretary Rod Paige to reject the recommendations. Feminist Majority Foundation founder and president Eleanor Smeal emphasized that "The Bush administration is conducting a stealth attack on Title IX and women and girls cannot, must not, let them get away with it."

Congressional Action Possible

Senator Joseph Biden Jr. (D-Del.) has introduced a resolution (S. Res. 40) that "reaffirms Congressional commitment to Title IX of the Education Amendments of 1972 and its critical role in guaranteeing equal educational opportunities for women and girls, particularly with respect to school athletes." Sens. Ted Kennedy (D-Mass.) and Tom Daschle (D-S.D.) are circulating a letter to be signed by other senators and sent to Education Secretary Rod Paige questioning the recommendations of the Opportunity in Athletics Commission, while expressing strong support for Title IX.

Biased Process, Distorted Information Used

From the very start, the commission's outcome was pre-determined as the commission membership was heavily weighted to oppose Title IX. Ten of the commissioners (14 total) are from Division I schools. There were no Division II or III representatives on the commission, nor were there any representatives from high school athletic programs.

Access to accurate information was a serious problem for the commission's work. The questions proposed to the commission by DoE either had no bearing on Title IX or were biased. In addition, commissioners were not given the information that they needed. For instance, they requested information on the 1996 clarification concerning proportionality and, reportedly, did not receive it. No expert legal counsel was made available exclusively to the commission.

The testimony taken at the half dozen or so Town Hall meetings across the country was orchestrated to feature anti-Title IX speakers. The White House and Department of Education selected speakers and weighted the panels 2 to 1 with anti-Title IX speakers.

There was plenty of opportunity for wrestlers and other anti-Title IX groups to provide input, while opportunity for pro-Title IX groups has been limited, e.g., the Michigan schools who lost to the National Women's Law Center (NWLC) in court were invited to speak—NWLC and related pro-Title IX groups were not allowed. NOW activists who sent in requests to speak at open microphone sessions following the Town Hall meetings were put on waiting lists and not ever called upon.

The Education department also wants to do away with certain data reporting requirements (so no one has any idea how well or how poorly schools are doing, we believe). The type of data that they want to eliminate has only been available for about a year and is critical to determine the effectiveness of Title IX programs. The federal government and hundreds of schools have dragged their feet for decades in providing this information.

Clearly, the Opportunity in Athletics Commission is a cover to change longstanding Title IX policies; the administration's intent is to recommend significant changes in 2003—about as far from any election as possible.

Big Colleges and Big Sports Behind Attack

The question that comes to many women's rights advocates is "Why?" Title IX is central to women's efforts to attain equality of opportunity and it is having a beneficial impact on women's educational experiences. The answer is fairly simple: colleges and universities who spend inordinate amounts of money on the big sports—football and basketball—find their budgets squeezed when they have to support a wider offering of athletic activities (for both men and women). They have helped to organize the opposition among various men's athletic associations, spreading false assertions such as "women are not interested in sports and that schools are forced to support programs for which there is little demand." The resulting effect, they assert, is that funding for men's athletic programs have had to be cut.

Over the years, a number of Title IX-related lawsuits have been filed against schools, but the courts have always found in favor of defendants and upholding Title IX. A case brought by the National Wrestling Coaches' Association asserting that the Title IX rules were adopted illegally is pending in U.S. District Court with a decision expected soon.

For more information on these efforts and factual material on financial support of women's and men's athletic programs, see the website of the National Coalition of Women and Girls in Education and the Women's Sports Foundation.

Recommended Changes Limit Opportunities

The National Women's Law Center has issued a detailed critique of the commission recommendations. Highlights:

• While women are now 56% of undergraduates (and in some schools, women are a much larger majority, as much as 70%), one of the Commission's proposals would assume that women are 50% of the student body at all schools—regardless of the facts.

• Another proposal would not count non-traditional students, who are overwhelmingly women; thus distorting the actual participation rates of men and women.

• A third proposal would allow schools to pretend that they are giving female students athletic opportunities by counting "ghost slots" on teams—slots never actually filled by any female student. Still another would allow schools to pretend that they are not giving athletic opportunities to men by not counting "walk-ons" (not specifically recruited)—who are actually receiving the benefits of sports participation at the school.

• The commission would also authorize the establishment of "variances" to permit schools to offer even fewer athletics opportunities to women under current law or new formulas.

• The commission would allow the use of "interest surveys" to limit women's opportunities by forcing them to prove that they are interested in sports before giving them a chance to play.

• The commission would authorize private slush funds that increase the financial support for men's teams at the expense of women's teams.

• The commission gave a blank check to the Secretary of Education to identify "additional ways of demonstrating compliance with Title IX" that could include new ways to weaken Title IX that were not even presented to the commissioners.

Changes to Eliminate Millions of Slots, Scholarship Dollars

In addition, a report released January 28 by the Dads and Daughters organization and the National Coalition for Women and Girls In Education along with the Women's Sports Foundation concluded that there would be a loss of up to almost one million high school athletic opportunities each year if proposed changes suggested by the Opportunity in Athletics Commission is adopted.

The girls in sports report finds that, assuming there is no reduction of participation opportunities or scholarship dollars, that this retreat from Title IX's goal of gender equity, that more than 18 million sports opportunities would be denied to girls and young women over a generation!

Further, there would a loss of between $75 million and $189 million in college athletic scholarships each year. Reductions in scholarship amounts could be even more drastic, depending upon the recommendations contained in the final report any new legislation that might be adopted.

Even though Title IX has been in effect for 30 years, there is still wide disparity over what schools invest in athletic programs for boys and young men and those provided to girls and young women. The commission's proposed variance of support will enlarge this disparity even more. As an example of current disparity: In 1999-2000 female students represented about 54 percent of the student body, yet only 23 percent of all NCAA Division I colleges provided women with athletic opportunities within five percent points of female enrollment.

Despite this and other disparities, the participation of girls and young women in athletic programs has grown dramatically. Prior to Title IX, only one in 27 girls participated in varsity high school sports—that number has soared to one in 2.5 for a total of 2.8 million girls not playing high school sports. A huge jump in the number of Olympic medals won by U.S. women can be directly linked to Title IX's objective of gender equity.

This Legislative Update was compiled by the Government Relations/Public Policy Team at the National NOW Office. Call Jan Erickson, Government Relations Director, at (202) 628-8669, ext. 122, if you have any questions or email her at govtrel@now.org. To receive free copies of any bill, call your U.S. Senator or Representative at (202) 224-3121 or connect to http://thomas.loc.gov. A legislative update is mailed monthly to the NOW leadership and posted on the NOW web site; any NOW member can receive the update for a yearly charge of $25. It is also sent to the NOW Action Alert email list and anyone may subscribe by sending the message to "subscribe now-action-list" (without the quote marks) to majordomo@now.org.