By Erik Brady, USA TODAY
Posted 12/17/2002 11:32 PM     Updated 12/19/2002 12:22 AM

A commission appointed by the Bush administration is poised to propose profound changes in Title IX, the federal law that forbids sex  discrimination at schools and universities receiving federal funds.

A commission appointed by the Bush administration is expected to propose major changes to Title IX.

By Bill Schaefer, AP

The Commission on Athletic Opportunity has received relatively little attention, though it does its work in public and its proposals could reverberate at virtually every educational institution in the country.

The 15-member commission held a meeting in Philadelphia two weeks ago at which members offered broad outlines of the kinds of changes they would like to see, especially in how the underlying regulations of Title IX apply to college sports. What emerged was a clear consensus to recommend new rules for enforcement of Title IX at its next meeting Jan. 8.

The notion of any change in the law that revolutionized women's sports has fueled anger among women's groups. A coalition of groups will gather in Washington today at the Leadership Council on Civil Rights to plan protests when the commission meets to vote on its proposals in preparation for its final report, due Jan. 31. The National Coalition for Women and Girls in Education will hold a teleconference Thursday to brief reporters on what it calls bias and flaws in commission work.

These next few weeks will be crucial ones behind the scenes at the Department of Education, where staff members are putting flesh and bone to the broad-stroke proposals commission members floated two weeks ago. Time remains for coalitions to form behind particular proposals, though commissioners are limited in how much they can do by e-mail and phone as all commission meetings, by law, must be public.

Several proposals center on changing the principle of proportionality, which says the percentage of a school's athletes who are female should mirror the percentage of women in the student body. If a college is 56% female — the national average — then about 56% of its athletes should be women.

Sports for women and girls have become a part of the national culture since Title IX's passage in 1972. About 2.7 million girls play high school sports — nine times more than in 1971. The number of women in Division I college sports has grown from 26,461, when the NCAA took over women's sports in 1981, to 62,677 in its most recent count. More males still play at both levels: 3.9 million in high school and 84,284 in Division I colleges.

Title IX has led to an increase not only in numbers but in talent and interest — to the rise of stars such as Mia Hamm and the formation of professional sports leagues such as the Women's National Basketball Association and Hamm's Women's United Soccer Association

But advocates of lower-profile men's sports such as wrestling fault Title IX for forcing the elimination of more than 400 men's teams as colleges tried to balance the numbers of male and female athletes. Ideally, college athletics administrators say, they'd add women's teams without cutting men's, but some athletic departments don't have the money to do that.

Women's groups say most colleges that add women's teams don't drop men's teams. But the Bush administration also has listened closely to backers of men's teams.

It appears likely the administration will embrace some form of the proposals to make proportionality more flexible. President Bush campaigned against "strict proportionality" when he ran in 2000. Education Secretary Rod Paige charged the commission with assessing whether Title IX works to promote opportunities for male athletes as well as for females.

'Sky is the limit'

"There is almost a sky-is-the-limit sense to the proposals" being discussed by the commission, says Marcia Greenberger, co-president of the National Women's Law Center. "It is shocking to see this commission throw out 30 years of progress in such a casual way."

Many commission members see it far differently. Many are college administrators who say they know firsthand the current rules are too hard to understand and too often hurt men's teams. Women's groups say that's nonsense — and that huge expenditures on football and men's basketball hurt minor men's sports and women's sports alike.

The arguments are old ones. What's new is the prospect of real change in rules that were written in 1979 and that courts have rendered bulletproof in a series of legal challenges since.

Title IX forbids sex discrimination in all programs at schools that get federal aid. Medical schools and law schools have long since complied. The continuing controversy is almost exclusively about how Title IX applies to sports, although the 35-word statute makes no mention of sports.

When St. John's University in New York City dropped its small-time football program last week, it said one reason was that its female enrollment has risen to 58%. The decision was less about dollars than numbers: Under current regulations, one way St. John's can comply with Title IX is to make sure that about 58% of its athletes are women — which is harder to do with a roster of 62 football players.

Critics of Title IX say proportionality is a quota. Proponents call it central to the meaning of the law. Critics say proportionality has been the blunt instrument used to kill about 170 wrestling teams. Proponents say if colleges with big-time, albeit revenue-producing, football programs reduced their football scholarship limit from 85 to 60 and stopped paying coaches $1 million a year and more, they could easily afford wrestling and gymnastics teams.

Commission member Julie Foudy, captain of the U.S. women's soccer team, suggested that the commission urge colleges to curb expenditures in the "arms race" in football and men's basketball. Other commissioners objected that it would amount to an antitrust violation to suggest that salaries be held in check.

Several proposals tackled the lightning rod of proportionality, which is the first part of a three-part test that the Education Department's Office of Civil Rights uses to measure whether a school meets Title IX's participation requirements. A school must pass one part of the test to comply.

The first part is the by-the-numbers test that says the percentage of female athletes should be proportional to the percentage of women in the student body. No number on the books says how close a school should be, but courts have often pegged it as being plus or minus 1%.

The other tests are harder to measure: The second says a school must show a history and continuing practice of adding women's sports. The third says a school must demonstrate that the athletic interests and abilities of the women on its campus are fully and effectively accommodated.

Defenders of Title IX say proportionality can't be a quota because there are two other ways to comply with the law. Commission member Gene DeFilippo, the athletics director at Boston College, proposes that a new policy statement be drafted to clarify what each of the three tests means.

A 1996 clarification letter from the Department of Education referred to the first test as a "safe harbor." Critics of Title IX say it has emerged as the safest way for a school to ensure it won't be sued for discrimination. Commission member Deborah Yow, the athletics director at the University of Maryland, says her school lawyers tell her to use the first test because the other two are too vague: "We need to be able to tell what the target is without legal degrees."

The commission held four town meetings across the country and heard testimony from dozens of witnesses, including men who felt they had been denied opportunities by the nintended consequences of Title IX.

It was against this backdrop that commissioners sat around a large table in Philadelphia this month and offered their proposals on reform. No one suggested leaving Title IX alone, and several zeroed in on the first test:

Co-chairman Ted Leland, the athletics director at Stanford University, proposed that a new test count "opportunities" rather than actual athletes as one way of determining proportionality. That way coaches of men's teams could keep non-scholarship athletes, if they chose. His was the first of several proposals predicated on the notion that men have more interest in sports than women.

Maryland's Yow suggested changing the proportionality rule so that male and female athletes be split 50-50 regardless of enrollment figures, and that "wiggle room" of 7% be built in. Under this formula, if a school's female enrollment was 58%, it could still meet the first test if 43% of its athletes were female — 50% minus 7%.

"The idea that you can measure interest by undergraduate enrollment is not logical," Yow says. "We don't hold elementary ed and engineering schools to that standard."

University of Iowa athletics director Bob Bowlsby proposed that participation rates in a given region's high schools be used as a barometer for colleges. If 42% of the high school athletes are female, he suggested that colleges in that region be required to have 45% of their athletes be women — 3% better than the feeder system. Foudy counters the proposal would freeze discrimination in place.

Brown University made similar arguments about differing levels of interest a decade ago in a landmark Title IX case — and lost. Courts have almost universally accepted the three-part test since its introduction in 1979.

What happens to these precedents if the principle of proportionality is substantially changed by the Bush administration?

Brian Jones, the Department of Education's general counsel, says courts would have to decide cases based on the new rules — and there could be different outcomes as a result. "The department could issue new regulations or a new letter of clarification," Jones says.

Jeffrey Orleans, executive director of the Ivy League, was among those who helped write the original regulations in 1979. He says when the government drafts a reasonable interpretation of a statute, it leaves an opening for the government to change its mind. The key, he says, is whether new policies are reasonable interpretations.

Jocelyn Samuels, the National Women's Law Center's educational director, says courts would throw out new rules like those proposed. "That could take years," she says. "It would be deeply unfortunate if we have to go down that road."

Samuels is highly critical of the role played by ex-officio commission member Gerald Reynolds, assistant U.S. secretary of education for civil rights, whose job it is to enforce Title IX. Reynolds offered a proposal that rules be considered for private financing of college teams, citing a case in which Marquette University dropped its wrestling program, though alumni were willing to pick up the cost.

"The Department of Education staff is not merely influencing the commission," Samuels says, "but is actively pushing it in the direction of drafting new policies."

Reynolds, who has a history of opposing gender and racial preferences, has been a controversial figure since Bush selected him. USA TODAY has requested an interview since before Reynolds was appointed in April. Reynolds agreed to an interview two weeks ago, but staff for the Department of Education later said he would not be available until after the commission completes its work.

Panel faces critics

What all this means for the law credited with revolutionizing women's sports in the USA depends on whom you ask. Title IX proponents say the kinds of changes being discussed would amount to repeal of the law. Advocates of men's minor sports say the proposals make good sense but don't go far enough.

Michael W. Moyer, executive director of the National Wrestling Coaches Association, is in favor of what he calls "a common-sense approach to giving colleges more flexibility" in meeting Title IX. "But we had hoped to see proportionality abolished altogether."

Moyer's group is among a coalition of coaches suing the Department of Education in an attempt to get the current Title IX regulations struck down. On the day in June that Paige named the commission, he said the place to settle complaints about Title IX was an open forum rather than the courts.

Advocates of Title IX immediately castigated the commission as proof that the Bush administration was out to roll back the law. Critics mostly held their fire during the summer and fall. "We wanted to give them the benefit of the doubt," Samuels says.

The first real fireworks came last month. Women's Sports Foundation executive director Donna Lopiano had publicly called the commission a sham and urged its members to resign. When Lopiano appeared as a witness at the fourth town hall meeting in San Diego, commission member Tom Griffith, the general counsel at Brigham Young University, pointedly asked her to retract her contention. She pointedly refused.

The arguments are bound to get louder in the days and weeks ahead. That is the history of Title IX. "These are the same arguments we have heard for 30 years," Greenberger says. "I think we could be entering a very unfortunate period of uncertainty."