December 6, 2002

Ms. Cathy Olian
Mr. Bob Simon
"60 Minutes"
524 West 57th Street
New York, NY 10019

Dear Cathy Olian, Bob Simon and "60 Minutes,"

Your one-sided segment on Title IX merits a gold medal for shoddy journalism. It not only misled your viewers by incorrectly stating the law in this area, but by also blatantly excluding obvious and important counter-arguments and data—which I gave you in droves in my two-hour on-camera interview, numerous phone conversations with your producers and supporting documentation—refuting the shallow claims of the wrestlers and their coach that Title IX is "quota" law that hurts men's sports. Your report card from this professor: "F" for inaccurate news reporting that cavalierly ignored the facts. Specifically, the segment article was exceedingly one-sided and biased in the following ways:

1. You misled viewers at the very start of the segment by wrongly asserting that the government has said that the only "surefire way to abide by Title IX" is by achieving proportionality, which—as is well known—is only one of the three ways of demonstrating compliance.

   As I told you during my taped interview, most schools do not rely on proportionality—the so-called Prong 1—to demonstrate compliance with Title IX. Only 21 of the 74 schools reviewed by the Office of Civil Rights between 1994 to 1998 used the proportionality test. In other words, less than one-third of the schools investigated relied on the proportionality test that you characterized as "the only surefire way to abide" by the law. The other 53 schools complied under Title IX's other two tests—a glaring factual omission.

   Moreover, characterizing the proportionality test as the only "surefire" way to comply is inaccurate and implies that the other two widely used tests are somehow "unsafe." This characterization overlooks the majority of schools, such as the 53 mentioned above, who have found safety in their use of the other two tests. Please note that "safe harbor" is a legal term of art found throughout law in many differing contexts (e.g., tax law, securities law, etc.) and does not imply that other methods of compliance are somehow less "safe." Instead, it is much like rebuttable presumptions found in employment law and other areas. Further, some compliance tests require more analysis than others, and the choice of one method of compliance versus another is of no legal consequence. If you comply with one test, you need go no further; if you don't meet one, you can rely on another. So, saying that proportionality is the "only surefire" way to comply is way off the mark—"wide right" as we say in Florida.

2. You allowed the wresting coach's assertion that Title IX was a "gender quota law" to go uncontested despite voluminous data and law to the contrary.

   As I specifically said during my taped interview, every federal appeals court that has examined this issue has upheld the regulations and concluded that Title IX does not constitute reverse discrimination and is not a quota law. The United States Supreme Court even refused to hear the Brown University case, which—although establishing no precedent—certainly reflects that these lower appellate courts are getting the law right. In fact, it is difficult to find greater unanimity of judicial opinion on a topic than this one. Whatever opinion the wrestlers or others might have on Title IX and purported "quotas" is not one shared by the federal judiciary nationwide—instead, it is unanimously discredited and rejected.

3. The statement in your promotional segment that women are now receiving "the lioness' share" in intercollegiate athletic programs is grossly and demonstrably false.

   Data and studies show that men continue to overwhelmingly enjoy the lion's share of the participation opportunities, the operating budgets, the recruiting dollars and the scholarships—despite 30 years of Title IX and despite women being the majority on campuses nationwide. For instance, in scholarships alone, men receive $179 million more dollars yearly in athletic scholarships than women do. How the promotional segment got the facts precisely backwards is befuddling and another serious disservice to viewers.

4. The assertion that men were losing sports opportunities failed to point out irrefutable data from the GAO that men actually gained opportunities overall.

   The statement was made that "Colleges have cut hundreds of wrestling teams, along with dozens of men's gymnastics, tennis and track-and-field teams. Men's swimming is also taking a bath." Saying that men's sports teams have declined in number, however, is a seriously misleading half-truth. Some men's sports declined, but overall they increased. Other men's sports—as I told you—have exhibited rapid growth, such as soccer where 120 new men's programs have been created. But, you failed to mention that fact or air the portion of my interview regarding the General Accounting Office Report ("GAO") that directly refuted the claim that men as a whole were losing sports opportunities. The GAO, the agency that conducts studies relied upon by all branches of government, found that men's opportunities had increased both in the number of teams offered and the numbers of individual opportunities to participate. The GAO study also found that most schools (72%) that added women's teams did so without discontinuing any teams. Why these important points were not presented is mystifying. Again, a disservice was done to the viewership.

5. The segment presented only men whose athletic programs had been cut or discontinued, but failed to present women who have been subject to decades of discrimination in sports, whose programs are cut or underfunded, or whose pleas for sports opportunities have gone unheeded.

   While male wrestlers were portrayed as unfairly treated victims whose programs were cut, you failed to present the stories of innumerable women who have had to sue their schools for the basic opportunity to participate in sports, or women who are currently treated like second-class citizens by their athletic departments. These women—whose voices were not heard in your show—must rely on the force of law to ensure that they are not subject to the types of stereotypical prejudices exhibited against women's athletics, views that were reflected in so many of the comments expressed and prevalent in your segment.

   Equally as egregious is that the segment failed to present the eye-opening data regarding, or interviews of men participating in, the numerous new men's programs established in recent years, such as in soccer and baseball.

   Additionally, as I said during my taped interview, while men's gymnastics lost 56 intercollegiate teams; women gymnasts in that same period lost far more—100 teams! The main premise of the segment—that men's sports were the only ones being cut back—is clearly not the case. That only lost men's programs were presented is clearly misleading and a disservice to viewers. A clearer picture should have been presented and would show that Title IX is not the "whipping girl" for lost men's gymnastics programs, unless you are prepared to say it also caused this concurrent and greater decline in women's gymnastics as well.

6. You allowed the wresting coach's incorrect assertion that the law does not allow for differences in male and female interests in athletics to go uncontested.

   If such an assertion were the law, schools would be required to start football teams for women, which is not the case. I gave another example in my interview of a school with only conservative Muslim women whose religion does not allow participation in sports. Because the women on that campus have no interest and ability to participate, the school would be in compliance with Title IX, even if it offered no female athletic opportunities.

   As we discussed, the law explicitly requires that such differences be considered. If a school demonstrates that its athletics program fully and effectively accommodates the interests and abilities of women, the school complies with Title IX under the "interests and abilities" participation test, the so-called Prong 3. It is the enormous demand for women's sports that prevents particularly large schools from meeting this test without matching opportunities provided to men.

7. The segment wrongly asserted that Title IX was only applied in athletics when, in fact, it is a law that prohibits discrimination in any aspect of education.

   Comparing men's and women's participation rates is appropriate in the unique sex-segregated world of athletics, as opposed to the mechanical engineering, physics, or dance programs—where admissions can be gender-blind. Unlike the engineering, physics and dance programs, athletic departments cannot operate in a gender-blind manner. Because of this sex-segregation, a college will decide—well in advance of an athlete's high school sophomore year—how many teams they will be sponsoring when that high school athlete eventually becomes a college freshman. As a result, "determining whether discrimination exists in athletic programs requires gender-conscious, group-wide comparisons." Title IX simply requires that schools allocate these school-created slots in a nondiscriminatory manner.

   Title IX applies to virtually all areas of education receiving federal financial assistance. It emphatically does not apply only to sports. Also, as I stated in my taped interview, comparisons of male-female athletic opportunities are appropriate where educational programs are segregated by sex. The impermissible "separate but equal" doctrine struck down in Brown v. Board of Education is permissible in athletics under Title IX because sports are gender specific.

8. You suggested that women aren't as interested in playing sports, and failed to point out the dramatic increase in interest among women in sports when opportunities are made available broadly. While you did include my statement that I was offended by this premise, you neglected to mention any facts supporting the opposite conclusion—that the last 30 years shows irrefutably that interest is a function of available opportunities. Girls in high school now are participating at a rate of 2.8 million per year—an 800% increase from pre-Title IX participation rates. While fewer than 30,000 women participated in college sports before Title IX, today that number exceeds 150,000—five times the pre-Title IX rate. With these enormous participation rates, how can it be claimed that women aren't interested in playing sports?

My own experience reflects the premise that interest follows opportunity. My family moved to Jacksonville, Florida, when I was eleven years old and the new school I was to attend happened to have a swim team with a young coach who would soon become one of America's premiere swimming coaches, Randy Reese. He convinced me and 50 other kids to get up at 4:45 a.m. to swim for two hours, lift weights during school, and swim for another two hours after school year-round. After a few months, he told me that I could be the best swimmer in the world, and I was hooked. My interest was a reflection of the opportunity my school and coach provided.

That some schools do not have as many female walk-on participants or "bench warmers" as men's teams does not demonstrate lack of interest by women—indeed it demonstrates the opposite. The fact that women rush to fill genuine competitive athletic opportunities demonstrates their desire to actually compete, rather than to be symbolic team members. As described earlier, women's athletic budgets are comparably smaller, giving coaches a disincentive to keep additional athletes on the bench. Furthermore, walk-on athletic positions may be less expensive, but they are not free. The issue is whether a school's heavy male walk-on roster will prevent that same school from starting a women's team, for which women are expressing a tremendous demand for actual competition. Whether and how many walk-on positions to budget reflect how a school chooses to allocate financial resources.

Demand for sports participation by both boys and girls far exceeds our schools' resources. There are more than six million boys and girls playing high school sports today who are vying for fewer than 400,000 college athletic participation slots. As I stated in my interview, with 2.8 million girls playing high school sports, it is inconceivable that colleges cannot find women to play on the teams they create. That's akin to the National Football League claiming that it can't find enough football players to play (and be financially rewarded) in its league, when each year they draft less than two hundred players and there are currently 60,000 football players in the NCAA.

Finally, if it is true—as your piece suggested—that women do not desire the sports participation opportunities that are foisted upon them, then a school will be deemed legally in compliance under the third prong of Title IX's participation test. If a school does not have unmet demand for a potentially viable competitive team, if it is providing opportunities for the women athletes who attend the school and have the ability to play and want to play, then the school will be in compliance with Title IX.

Young women continue to be hampered by schools that fail to field teams because of these outmoded stereotypes that virtually everyone agrees are not provable. The myth that women aren't as interested in sports persists stubbornly despite the powerful reality to the contrary.

In conclusion, the fact that some schools are hostile to Title IX and make choices inconsistent with the school's educational mission does not imply that women should be afforded fewer athletic opportunities. The wrong-headed decisions of athletic departments are the problem, and weakening effective civil-rights laws is not the solution.

The compliance choices made by athletic departments are not the benchmark to determine a law's logic, ethic or the values it embodies. Schools may choose to comply with Title IX in many different ways. The law does not require or even encourage schools to eliminate or cap a men's program to comply with Title IX. That some schools choose to do so is not a legitimate basis for criticizing it, whose foundation is to provide equivalent educational opportunities to both genders.

Collectively, we nod in agreement at the injustice of a men's athletic program elimination, just as we agree with the injustice of girls who are told that they could not compete, or female athletes who are treated like second-class citizens compared to their oftentimes pampered male peers. We all recognize that sports are an integral part of a child's educational experience because they build character, foster teamwork, and strengthen both mind and body. If we are collectively in agreement that sports participation is important to both our sons and daughters, why are men's sports still being cut, and why are women still treated like second-class citizens within athletic departments?

The answer is that "we"—the proverbial soccer moms and dads—are not the decision makers. It should not come as a surprise that some schools and athletic directors are hostile to Title IX. If not overtly hostile to the laws, some athletic departments are at least resistant to the enormous changes occurring in women's sports. This is due in part because athletic department personnel are often times judged, compensated, evaluated, and promoted primarily on the performance of two men's sports—football and basketball. All other sports, including women's sports and other men's sports, are good for an "attaboy" or two, but do not define a successful career within some athletic departments, and may not lead to promotions. How can the decisions that these athletic departments make regarding Title IX compliance form any legitimate basis for criteria used to determine whether Title IX is "working" or has "unintended consequences"? The hostile decisions of a few athletic departments skewed by their own biases do not and, indeed, should not be allowed to define the effectiveness of a remarkable civil rights law. The law is not making these decisions, athletic departments are.

Have we not seen the same type of decisions before in other civil rights contexts? As I told you in my taped interview, the 1950s saw new desegregation laws which required community parks and swimming pools to be integrated, i.e., that communities could no longer operate white-only facilities. Some communities chose to close these facilities rather than integrate.

The difference today between those anti-racial discrimination laws and anti-sex discrimination laws of today is eye-opening. While some segregationists in the 1950s may have blamed the desegregation laws for the loss of white-only public facilities such as swimming pools, we all generally agree today that the moral blame for those past decisions should be placed where it belongs—on the communities that closed public facilities for their hostility to the principles of racial equality. This is exactly where the moral blame lies for discontinuing viable men's teams—with the school making the choice, not with the law.

Schools have enormous flexibility to comply with Title IX. Schools can show they are meeting demand for women's sports. If they are not meeting demands for women's sports, they can increase the participation opportunities for women in a number of ways. They can reallocate their budgets between all sports programs, they can require that all sports programs tighten their belts to make room for new women's teams, or they can devote additional school resources/funds/revenues to athletic departments. Alternatively, schools can choose only to decrease athletic opportunities for men. Please note that in the extreme, a school could simply achieve "compliance" by eliminating the athletic department altogether. Just because a misguided school declares it is cutting its entire athletic department because of Title IX, however, doesn't mean that Title IX is mandating that choice. Many other choices exist, which is my point. The law does not make any of these decisions.

As I said during our taped interview, there are many alternatives to achieving gender equity while retaining men's sports, outside of tinkering with Title IX and its regulations. Alternatives include: an antitrust exemption for collegiate sports to cap million-dollar coaching salaries, legislation halting the "arms race" in football and men's basketball, limiting the number of football scholarships from 85 to 60, NCAA regulations disallowing member institutions to cut men's sports, among many others. These alternatives cannot be dismissed out of hand as not "practical," particularly if "practical" equals "politically viable" against men's football interests. Powerlessness is the basis upon which civil rights laws, including Title IX, are based. Powerlessness does not make keeping hyper-inflated men's budgets at the expense of all other athletic opportunities moral or ethical. Indeed, Title IX is designed to guard against just this sort of gender discrimination in athletic budgets and resource-allocation decisions.

The primary ethic in Title IX holds that sports' experiences should be equally available to both our sons and our daughters in our schools. Do not confuse the (un)ethical choices that some schools have made with the ethical values that the current law and regulations embrace. This ethic mandates that these educational experiences are more important than revenue-production from and for a very few. The ethic of Title IX allows our sons and daughters to participate in sports in ways that match their unique interests and abilities. Title IX made my college scholarship and my Olympic gold medals in 1984 possible, and has opened innumerable professional doors. Despite hostility by some decision-makers, the current regulations have thrown open the doors and made a sports experience available for the first time to literally millions of girls and women.

Your segment did an enormous disservice to all women when you intentionally presented only one view of Title IX, despite being well informed of facts and arguments that would have pointed to a very different conclusion. At the very least, you should have presented both sides accurately and allowed your viewers to decide. What a shame.

Sincerely,

Nancy Hogshead-Makar
Olympic Champion
Assistant Professor of Law
Florida Coastal School of Law