Editorial

The Women's Freedom Network Newsletter July/August, 2002;  Volume 9, No. 4 Should We Revisit Title IX? by WFN Staff

This year marks the 30th anniversary of the passage of Title IX. Title IX is part of the Education Amendments of 1972. In particular, Title IX states that, "No person in the United States shall on the basis of sex, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any educational program or activity receiving federal financial assistance." The Department of Education "celebrates" this anniversary by having to answer to criticisms about the government's enforcement of the athletics component of Title IX. The major criticisms are:

• DOE has failed to provide clear guidance on how colleges can comply with Title IX;
  
• DOE's Office for Civil Rights has not enforced Title IX effectively; and
  
• The way in which the law is enforced needlessly results in the elimination of certain men's teams.

In January 2002, the National Wrestling Coaches Association sued DOE alleging, in part, that the Department's 1979 Policy Interpretation and its three-part test, and the 1996 Letter of Clarification unlawfully altered the way it interpreted Title IX rules. The 1979 Policy Interpretation states that if a recipient institution operates or sponsors an athletic program, it must provide equal athletic opportunities for members of both sexes. The three-part test refers to a portion of the Interpretation that provides guidance on (words) the application of the Title IX requirements to athletics, so that institutions can determine whether or not their intercollegiate athletic programs provide non-discriminatory participation opportunities for male and female athletes. The 1996 Clarification was DOE's attempt to further explain the Interpretation and the three-part test.

Plaintiffs argue that the 1996 Letter of Clarification set out new rules for how DOE would interpret the Title IX three-part test. Plaintiffs believe that this 1996 letter led to the arbitrary elimination of athletic programs by stating that "An institution can choose to eliminate or cap teams as a way of complying with part one of the three-part test." Plaintiffs charge that this improper rule-making and its enforcement have led to the discriminatory elimination of hundreds of men's athletic programs, costing student-athletes both scholarships and the opportunity to compete.

To investigate these matters, Secretary of Education Ron Paige has commissioned a 15 member advisory group, the Commission on Opportunity in Athletics, to collect information, analyze issues, and obtain public input directed at improving the application of current federal standards for measuring equal opportunity for males and females. Members of the Commission of Athletic Opportunity include Co-chair Cynthia Cooper, Co-chair Ted Leland, Percy Bates, Bob Bowlsby, Gene DeFillipo, Donna de Varona, Julie Foudy, Tom Griffith, Cary Groth, Lisa Graham Keegan, Muffet McGraw, Rita Simon, Mike Slive, Graham Spanier and Deborah Yow. The group will report to the Secretary whether or not federal enforcement standards should be revised, or whether other steps should be taken to improve the effectiveness of Title IX.

Some critics are concerned about the work of the Commission. For example, Senator Hillary Rodham Clinton states that, "we don't want to do anything that turns the clock back on women and girls." Senator Barbara Mikulski states that, "we shouldn't use the word 'reform' as a code word for ravaging Title IX" Other critics like Marcia Greenberger, co-president of the National Women's Law Center, argues that "The law and its policies must not be changed, and there is no reason to reopen them ... If the [Bush] administration wants to improve Title IX it should strengthen enforcement of the law and policies already on the books."

These are valid concerns, however, is it not the Commission's intention to roll back the rights of female athletes because a few men are complaining that their programs have been eliminated. Instead, the idea is to find a method that allows schools to structure their athletics programs to meet the needs and goals of the school and its students, both male and female, that is consistent with the requirements of Title IX.