Flexibility sought on Title IX quotas

                      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.