By George Archibald
THE WASHINGTON TIMES
January 31, 2003
A Bush administration athletic commission voted yesterday to ask
the U.S. Education Department to find ways other than quotas to
ensure that colleges and universities are not discriminating against
women's sports programs.
But the 15-member Commission on Opportunity in Athletics voted down a
recommendation to ban outright numerical formulas under Title IX
federal mandates.
Instead, the panel voted 10-5 to ask Education Secretary Rod Paige to
consider allowing schools to use student-interest surveys, rather than
proportional quotas based on percentages of men and women
enrolled, to determine how many teams must be offered for women
compared to those for men.
The panel had previously voted 11-4 against the ban on quotas.
"The problem is, there is a measure of trust," said Commissioner
Deborah Yow, athletics director at the University of Maryland, in
defense of a federal proportionality rule used to gauge whether
college sports programs discriminate against women. The rule
decrees that support for male and female athletics be proportional to
the percentages of men and women enrolled in the schools. The civil
rights enforcement allows a variance of 1 percent to 3 percent.
"Even when you can identify a discriminatory process, it is fraught
with problems to get that remedied," she said. "That's why I gravitate
toward a numerical formula. You know it when you can see it. It's an
efficient process."
Commissioner Thomas B. Griffith, the panel's most outspoken
opponent of quotas, said he agreed such formulas are efficient.
"They're very efficient," said the general counsel for Brigham Young
University in Utah. "But efficiency is not the value here. Fairness is
the value here. When you use numeric formulas, you compromise
fairness for efficiency."
Mr. Griffith said the 1972 Education Amendments that included
Title IX specifically prohibited "preferential or disparate treatment to
either sex because of an imbalance" in their respective numbers.
"Numeric formulas violate the intent of the law. They're morally
wrong. They're unconstitutional," he said.
Title IX is part of the Education Amendments of 1972, intended to
protect against discrimination based on sex in education programs or
activities funded with federal money. The law is enforced by the
Office for Civil Rights (OCR) at the Department of Education.
A majority of the commission agreed that the proportionality rule
issued by the OCR in 1996 lacks sufficient flexibility to deal with
constant changes in student populations.
Ms. Yow offered a recommendation, adopted 7-7 with one member
absent, that federally funded schools covered by Title IX would be
expected to allocate 50 percent of their sports "participation
opportunities" for men and 50 percent for women, with a 2 percent to
3 percent variance in compliance with the standard.
Seven of the 26 recommendations considered by the panel
yesterday involved the proportionality rule and related issues. Some
of them were:
If a proportionality rule remains in force, the panel voted 15-0 that
OCR "should clarify the meaning of 'substantial proportionality' and
allow a reasonable variance while adhering to the nondiscriminatory
tenets of Title IX."
On a 10-3 vote, the panel said the government should not make
schools use the number of athletes on a team on the first day of the
season for purposes of comparing "participation opportunities" for
men's and women's teams. Instead, in consultation with OCR, an
institution could establish that it has complied with the
proportionality rule by showing that it had budgeted an equitable
number of team slots for men and women compared with the school's
enrollment ratio, the panel recommended.
Students without full or partial scholarships or who were not
recruited for school teams would be classified as "walk-ons" and not
counted in the proportionality calculations under a recommendation
adopted 8-5, with two commissioners absent.
The panel voted 9-4 to exclude "non-traditional students"
generally students older than age 23 who have returned to college to
complete their degree and have no interest in joining sports teams
from being counted in the proportionality calculations.
The commission also voted 12-1 that OCR "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 panel said OCR
should ensure that Title IX enforcement and education "is consistent
across all regional offices."
The panel ended its two days of deliberations yesterday at the
Hotel Washington in the District. It will send a final report of its
nonbinding recommendations to Mr. Paige, who will then decide
whether to implement them.