Proponents for changing Title IX policy believe they have a unique opportunity to modify its application now that a new presidential administration is in place.

President Bush has indicated support for the Title IX statute itself, but he also has spoken of opposition to "strict proportionality that pits one group against another."

That statement -- made while Bush was a presidential candidate -- and the inclusion of a statement regarding Title IX in the Republican Party's 2000 Platform have given some groups reason to believe that Bush may view Title IX implementation much differently than former President Clinton.

As the Bush administration prepares to name an Assistant Secretary for Civil Rights within the Department of Education -- the individual who would replace Norma Cantu, who served for eight years as the head of the Office for Civil Rights (OCR) under Clinton -- many in intercollegiate athletics are watching closely. The individual selected will have at least the opportunity to make changes that could affect college athletics for some time to come.

Winds of change?

Groups that support the status quo on Title IX generally seem to believe that the statute is backed by enough structure and case law to limit the scope of any change, no matter who is in charge.

"It doesn't surprise me that, with the new administration, the groups that have been leading the charge to undermine Title IX would think that they are better situated to accomplish their aims," said Verna Williams, vice-president and director of educational opportunities for the National Women's Law Center. "But we would be very surprised if OCR would try to tamper with long-standing policies that virtually every court in this nation has upheld as consistent with the statute and with Congress' intent in passing Title IX."

But groups opposed to the cur-
rent application perceive a change-friendly environment with a Republican executive branch and a House of Representatives led by Speaker of the House Dennis Hastert, R-Illinois, an outspoken critic of current Title IX policy.

Kimberly Schuld, director of policy for the IWF, described a 180-degree turnaround in how she is treated in Washington.

"There's no need to repeal Title IX itself. Everything can be fixed through the agency (OCR). We are very interested in who becomes the next head of OCR, and we have been sought out and asked our opinion on it.

"This whole issue has been managed in the public eye by feminist groups. Now a whole host of different perspectives will be brought to the table. It's time to open the doors of discussion to people who are looking at this from a more practical standpoint."

Iowans Against Quotas (IAQ) -- formed in the summer of 1999 and consisting mainly of wrestling coaches, wrestling officials, fans and parents from Iowa -- held statewide meetings to discuss what could be done to preserve wrestling and change Title IX application. It decided to focus on the presidential campaign.

IAQ President Eric LeSher's group gathered more than 25,000 signatures in a span of four months on a petition that "encouraged politicians to abolish the use of the gender quota, known as proportionality, as a measure for compliance with Title IX."

"We believe that the enforcement of Title IX by the Office for Civil Rights, under the direction of the Department of Education, is a quota system that is not only against the law (but also) is wrong," LeSher said. "We are opposed to the use of proportionality as a measurement for compliance with Title IX and it is our intention to see that it is abolished."

Not everybody sees it that way.

"The characterization of proportionality as a quota is simply incorrect," said Donna Lopiano, executive director of the Women's Sports Foundation. "There are a number of groups out there alleging that Title IX requires a quota system and the matter of fact is that it doesn't."

IAQ was encouraged by the Republican Party's 2000 Platform, which supported "a reasonable approach to Title IX that seeks to expand opportunities for women without adversely affecting men's teams."

LeSher said, "In my opinion, the platform statement acknowledges that a problem exists and lays the groundwork for a solution that is reasonable."

LeSher was further encouraged by a Bush statement published in the February 25, 2000, issue of The Chronicle of Higher Education:

"I support Title IX," Bush said. "Title IX has opened up opportunities for young women in both academics and sports, and I think that's terrific. I do not support a system of quotas or strict proportionality that pits one group against another. We should support a reasonable approach to Title IX that seeks to expand opportunities for women rather than destroying existing men's teams."

White House spokesperson Scott Stanzel recently told The NCAA News that Bush has not commented on Title IX since then.

"At this point, we have nothing to add to that statement," Stanzel said. "The president has not made any additional public comments."

"If the current administration is even contemplating any changes in Title IX," said the recently retired Grant, "they will stir the wrath of the parents of 2.7 million girls who currently participate in high-school athletics. This would be in addition to the parents of more than another million girls who want to play but are denied the opportunity because of discrimination.

"The parents of talented collegiate female athletes are likely to be more infuriated because at this level young women are not only missing out on participation opportunities, they are also being denied access to a free education. In 1997-98, women received approximately $170 million less in athletics scholarships than men."

OCR battleground

Those who endorse change are focused on the OCR appointment. However, Connee Zotos, athletics director at Drew University, urged the new president to consider the polls when selecting a candidate to fill the position. Zotos pointed to a poll published in the June 22, 2000, issue of the Wall Street Journal that showed that 76 percent of those polled supported Title IX, even if it meant that some men's programs had to be cut.

"I would hope that any of President Bush's appointees would study the facts before they make significant changes in the law," Zotos said. "I would also hope that they would listen to the American people."

But others, frustrated by what they see as the injustices of the Cantu years, believe Americans would support new policy.

"We are hoping that the new director of the OCR will interpret Title IX in a way that is fair to both males and females," LeSher said. "We want female athletes to continue to benefit from Title IX without destroying men's sports opportunities. We are cautiously optimistic the Bush administration will make changes that we can and will support."

Mike Moyer, executive director of the National Wrestling Coaches Association, also is encouraged.

"While the NWCA is a nonpartisan organization," he said, "it is very interested in who the Bush administration appoints to be the next head of OCR.

"The NWCA is encouraged by statements of the Bush administration supporting the original spirit of Title IX and opposing OCR's current gender-proportionality interpretation of the law. The NWCA agrees with these positions (of Bush's) and is therefore hopeful that the Bush administration will be supportive of the NWCA's views."

Michael Copperthite, executive director of the National Coalition for Athletics Equity -- a group that counts among its membership many Olympic sports national governing bodies, such as USA Swimming, USA Track and Field and numerous others -- sees an opportunity to undo Cantu's work.

"We embrace Title IX," he said, "but we're also for the fair and equal application of the law. Cantu's application of the rules and regulations to the law was wrong. She almost wrote law and interpreted law herself. Just because there's a Republican White House and Congress, I don't think the gains of Title IX are going to be reversed. But I do think (Title IX) needs to be fine-tuned. Whoever has the (OCR) job should be someone who looks at it and says, 'We ought to be offering more opportunities, not less.' "

Janet M. Justus, an attorney for the law firm Verrill and Dana and a frequent speaker on Title IX issues, disagreed with such characterizations of Cantu. She said Cantu's interpretations over the years were intended to aid institutions in complying with the law, not to make new laws.

"She certainly didn't write any law," Justus said. "She was interpreting the policy, which is the OCR's job."

Justus said that many people believe Cantu didn't go far enough.

"The court decisions influenced OCR (on Title IX implementation) just as much as OCR influenced the courts," she said. "The courts were consistently applying the 1979 Policy Interpretation that was already in place. Cantu was following the lead of the court."

Seeking a new direction?

The NWCA, IAQ and IWF and other groups especially hope that a like-thinking OCR head would end the use of the "proportionality" part of the three-part test OCR has used to aid in determining compliance with Title IX.

In essence, that part of the test, spelled out in detail in the OCR's 1996 Policy Clarification, provides a "safe harbor" for schools that provide participation opportunities for women and men that are "substantially proportionate to the institution's respective rates of enrollment of full-time undergraduate students." Compliance also can be achieved through the other two parts of the test, "a demonstrated history of program expansion" or "fully and effectively accommodating the interests and abilities of the under-represented sex."

Dale Anderson, an attorney, activist, former wrestler for Michigan State University and a former member of Hastert's staff, has lobbied Washington lawmakers for eliminating proportionality as part of any test to determine Title IX compliance.

"Cantu says that any administrator can choose any of the three prongs to comply with Title IX," Anderson said. "If that is true and you got rid of prong one (proportionality), the schools would still have two others. There is little other purpose for prong one than to eliminate males, and there is no other purpose for prongs two and three except to increase female participation."

Anderson believes that Bush will change the implementation of Title IX.

"He said that he would and his staff said they would support it, so I'm going to assume that they are going to be good to their word," Anderson said.

"I would like the new OCR director to understand that proportionality is a quota that should be abolished or treated as 'safe harbor,' as it was originally intended to be, instead of the litmus test for the determination of discrimination under Title IX, (which it has become)."

Not surprisingly, Lopiano sees it differently.

"The position of the Women's Sports Foundation consistently has been that Title IX does not require any change," she said. "If anything, it's one of the weakest civil rights laws on the books. There needs to be stricter enforcement.

"We would encourage the Bush administration to: No. 1, more fully enforce Title IX; No. 2, do its homework and understand that Title IX doesn't require quotas; and No. 3, realize that there's still a great deal to do to ensure that women and girls have opportunities in sport. This is no time to pull back on Title IX."

Williams, from the National Women's Law Center, agreed.

"These groups use rhetoric to confuse people, and the use of 'quota' is a calculated word choice," she said. "Title IX is not a quota. Courts have uniformly upheld the three-part test, and that test provides institutions with three ways to comply. It gives institutions the flexibility they need."

The next step

The new OCR assistant secretary will have to go through the Senate confirmation process, and there has been no announcement yet as to who any candidates might be.

For his part, Michigan State's Anderson believes that change in Title IX is imminent.

"Administrators in institutions of higher education should know that there are going to be some new rules soon," Anderson said. "If they are dropping male athletes to achieve the quota -- that is, roster management -- or they have decided to drop male athletics teams to try to achieve proportionality, they should freeze the situation until they see the new rules."

"It's not just about proportionality," Justus said. "It's about how women are treated, what opportunities they have. Any changes to the Title IX interpretations or regulations would face extreme scrutiny by a number of groups, both male and female."

Williams said that the issue should be regarded as an ongoing problem.

"Athletics participation is just as important for young women as it is for young men. Discrimination is a major persistent problem that has been documented by reputable newspapers all over the country," she said, noting that a series by the Atlanta Journal and Constitution last summer detailed numerous examples of disparate treatment.

"That wasn't from 20 years ago or five years ago," she said. "That was just last summer. We still have a long way to go, and it's vitally important to continue the progress that we've made in gender equity."

Justus said she believes it is important to discuss the OCR appointment and the Bush administration's views now, before any changes are made.

"If there is going to be a push to change the regulations or change the policy interpretations, let's make sure it's a public discussion with all sides represented," she said. "Public discourse is a great thing. It's what makes our society strong. The time to talk about this is now, not later. And the place to have these discussions is out in public. Otherwise, decisions are made behind closed doors without the input of the people."

NCAA to push for hearings on assistant secretary nominee

Although Title IX is a federal law that obviously could be changed by a vote of Congress, that course of action is not being seriously considered at this time by groups that want the application of the law modified.

Those groups instead are looking at how a new Assistant Secretary for Civil Rights, the new head of the OCR within the Department of Education, could change the way Title IX has been implemented.

Title IX implementation consists of the statute, the regulations and the numerous policy interpretations and clarifications that have been issued over the years. The courts also have ruled on Title IX, establishing precedent. Still, there are ways a new administration could make changes.

Doris Dixon, NCAA director of federal relations, explained the process:

"It is unlikely that this Congress will act upon legislation that would fundamentally alter Title IX," Dixon said. "However, it is possible that the new Assistant Secretary for the Office for Civil Rights could propose changes in the regulatory policy that guides enforcement of Title IX. This would require publication in the Federal Register of Notification of Proposed Rulemaking (NPRM). Through the NPRM process, the public is allowed to comment on the proposed regulatory change and voice support or opposition to the proposed change at that time.

"The final decision on any proposed changes would be at the discretion of the Assistant Secretary and ultimately the new Secretary of Education (Roderick Paige).

"However, it is more likely that if a change is to made in the underpinnings of Title IX, it would be made through a less formal route, such as policy interpretation or clarification."

"The NCAA will push for a hearing on the nominee to learn more about his or her background in the area of gender equity," Dixon said.

The Senate committee that will oversee the confirmation of the Assistant Secretary for the Office for Civil Rights in the Department of Education is the Senate Health, Education, Labor and Pensions Committee. Sen. Jim M. Jeffords, R-Vermont, is the committee chair. Sen. Edward M. Kennedy, D-Massachusetts, is the ranking Democrat.

"Sen. Kennedy feels that Title IX has changed the face of women's sports by providing opportunities to women and girls that previously did not exist," said a Kennedy spokesperson.

"Title IX is an important civil rights law that I intend to vigorously defend," Kennedy said.

"Sen. Jeffords has not indicated that he is thinking about any changes in Title IX implementation at this time," said a Jeffords spokesperson. "However, that doesn't mean he won't want to consider changes at a later time."

The Jeffords spokesperson also indicated that whether a public hearing was held on the position would depend on whether the public had expressed interest.

"Most of our nominees do not have hearings," he said. "If there is a lot of public attention and focus placed on a particular position, we would consider a hearing. Whether or not there's enough public interest in this position at this point, we don't know."

Thoughts on Title IX

Recent comments concerning the application of Title IX:

* "I support Title IX. Title IX has opened up opportunities for young women in both academics and sports, and I think that's terrific. I do not support a system of quotas or strict proportionality that pits one group against another. We should support a reasonable approach to Title IX that seeks to expand opportunities for women rather than destroying existing men's teams."

-- George W. Bush, as quoted to The Chronicle of Higher Education, February 25, 2000

* "We also support a reasonable approach to Title IX that seeks to expand opportunities for women without adversely affecting men's teams."

-- Excerpt from the 2000 Republican Party Platform Statement

* "We would encourage the Bush administration to: No. 1, more fully enforce Title IX; No. 2, do its homework and understand that Title IX doesn't require quotas; and No.3, realize that there's still a great deal to do to ensure that women and girls have opportunities in sport. This is no time to pull back on Title IX."

-- Donna Lopiano, executive director of the Women's Sports Foundation

* "There's no need to repeal Title IX itself. Everything can be fixed through the agency (OCR). We are very interested in who becomes the next head of OCR, and we have been sought out and asked our opinion on it. This whole issue has been managed in the public eye by feminist groups. Now a whole host of different perspectives will be brought to the table."

-- Kimberly Schuld, Independent Women's Forum

* "Administrators in institutions of higher education should know that there are going to be some new rules soon. If they are dropping male athletes to achieve the quota ­ that is, roster management ­ or they have decided to drop male athletics teams to try to achieve proportionality, they should freeze the situation until they see the new rules."

-- Dale Anderson, attorney, activist and former member of Speaker Dennis Hastert's staff

* "It is critical that the Assistant Secretary for the Office for Civil Rights at the U.S. Department of Education publicly commit to do all in his or her power to continue the significant participation gains of women in higher education. While women have made tremendous strides in this area, there is still much to be done."

-- NCAA Committee on Women's Athletics, in letters addressed to Department of Education Secretary Roderick R. Paige and President George W. Bush

* "The NCAA will push for a hearing on the nominee (for Assistant Secretary for Civil Rights, Department of Education) to learn more about his or her background in the area of gender equity."

-- Doris Dixon, NCAA director of federal relations

Title IX umbrella covers legislation, regulations and policy interpretation

Over the years, there have been other notable policy documents, including the "Title IX Investigators Manual" issued in 1990; the "Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Test," also known as the 1996 Clarification; and a 1998 document refining the OCR's policy as to what constitutes "substantial proportionality" in regard to athletics scholarships.

Of specific interest to many groups is eliminating the first part of the three-part test described in OCR's 1979 policy interpretation and further spelled out in the 1996 Clarification. This first part of the test has come to be known as "proportionality."

Norma Cantu's letter accompanying the 1996 Clarification describes it this way: "The first part of the test -- substantial proportionality -- focuses on the participation rates of men and women at an institution and offers a 'safe harbor' for establishing that it provides nondiscriminatory participation opportunities."

Essentially, if the rates of men's and women's participation in the intercollegiate athletics program are proportionate to the institution's respective rates of enrollment of full-time undergraduate students, then compliance is presumed.

The other two parts of the test, "demonstrating a history and continuing practice of program expansion for the under-represented sex" or "fully and effectively accommodating the interests and abilities of the under-represented sex," do not require institutions to measure their participation opportunities against the student body.

"It is clear from the Clarification that there are three different avenues of compliance," Cantu wrote in 1996. "Institutions have flexibility in providing nondiscriminatory participation opportunities to their students, and OCR does not require quotas."