In what has become a closely watched case, the U.S. Department of Justice May 29 filed a motion asking that a district court in Washington, D.C., dismiss a lawsuit challenging the "proportionality prong" of Title IX.

The suit was brought by the National Wrestling Coaches Association (NWCA) and other athletics organizations alleging that the regulations the Department of Education uses to implement Title IX, the 1972 federal statute prohibiting sex discrimination in education, have been improperly adopted and implemented. The suit also contends that the regulations -- and subsequent court decisions interpreting them -- have led many universities to cut men's sports rather than add women's sports to seek gender equity.

The Department of Justice filed a motion on behalf of the Department of Education to dismiss the case, surprising many observers who had speculated that the Bush administration was planning to seek a suspension and possible review of Title IX regulations.

At issue specifically is what's known as the "proportionality prong" of the three-part test that may be used to, in effect, prove compliance with Title IX. Federal regulations provide three ways for institutions to comply with the participa- tion opportunities element of Title IX: providing opportunities for women and men that are substantially proportionate to their respective rates of enrollment as full-time undergraduates (often referred to as the "proportionality prong"); demonstrating a history and continuing practice of program expansion for the underrepresented gender; or fully and effectively accommodating the interests and abilities of the underrepresented gender.

The lawsuit brought by the NWCA and others is unique in that it challenges the three-pronged test itself.

The Department of Justice, in asking that the suit be dismissed, did not address the underlying merits of the lawsuit. Instead, the department made three procedural arguments: that the plaintiffs lack standing to file their lawsuit because the loss of athletics programs they allege is not redressable by the court; that the plaintiff's claims against the Department of Education are barred because the institutions that plaintiffs allege to have improperly eliminated men's athletics programs, not the Department of Education, are the proper targets of the lawsuit; and that the statute of limitations has expired with respect to the plaintiff's challenges to the Department of Education's 1980 Title IX regulations and its 1979 policy interpretation.

The plaintiffs have until June 10 to respond to the Department of Justice's motion to dismiss.

Interpreting the response

Over the last couple of weeks as the date drew near for the Department of Justice to respond to the lawsuit, a flurry of e-mails from the Women's Sports Foundation, the National Women's Law Center and other groups encouraged many in athletics to send e-mails to Congress supporting Title IX and its continued enforcement through existing regulations. Many of those e-mails indicated that prominent supporters of women's athletics had heard a revision was imminent.

Another flurry of e-mails from those affiliated with the NWCA urged opponents of proportionality to contact members of Congress.

Concurrent with those efforts were columns in several national magazines and newspapers highlighting a new book, "Tilting the playing field: School, sports, sex and Title IX." The book's author, Jessica Gavora, is the chief speechwriter for U.S. Attorney General John Ashcroft and also is described on the book jacket as a "senior policy advisor at the Department of Justice." Gavora's book criticizes Title IX and asserts that it promotes quotas and the destruction of men's sports.

Gavora's now well-publicized views and also her position in the Department of Justice led many to believe a change in the enforcement of Title IX was underway. In actuality, however, the Department of Justice answered the suit itself, not the merits of Title IX. In light of all that has happened, what might happen next is uncertain.

Department of Education General Counsel Brian Jones issued a statement commenting on the Department of Justice's actions, noting that it had not addressed the underlying merits of the case and adding, "The administration strongly supports Title IX. Title IX has opened up opportunities for young women in both academics and sports. We believe we should strive to expand opportunities for women in a way that does not diminish existing men's teams."

Proponents of Title IX report that they are alarmed by the fact that the Department of Justice did not address the merits and also by the language the department used.

"'What is revealing is what the government didn't say," said Marcia Greenberger, co-president of the National Women's Law Center. "It made absolutely no defense of the underlying policies that were challenged by the wrestlers, and it sets off alarm bells as to what the future plans of the administration might be, whether they are keeping their options open to roll back and weaken Title IX enforcement.

"It spoke volumes that in its response to the lawsuit, the (Bush) administration made no defense whatsoever, even in passing, of the athletics policies that are so important to young women in this country. If this deafening silence foreshadows a planed attack on Title IX policies, which go back to 1975 and were defended during the Ford, Reagan and Bush administrations, the current administration has the wrong target."

Congresswoman Patsy T. Mink, a Democrat from Hawaii who has been a strong supporter of Title IX, issued a statement applauding the Bush administration's decision to seek dismissal of the lawsuit and urging continued support of Title IX. Mink noted in her statement that blaming of women for the loss of men's teams did not benefit either gender.

"A final and very dangerous aspect of this ongoing blame game is that it has the ultimate effect of pitting men students against women students on our college campuses," she said. "This is irresponsible and unworthy of the goals of dignity, equality and opportunity for all that characterized our dreams for Title IX 30 years ago. Therefore, I am very pleased that in responding to this lawsuit this week, the Bush administration has expressed strong support for Title IX. Cooler heads must prevail in the face of spurious attempts to undermine this historic civil rights legislation."

Mike Moyer, executive director of the NWCA, told The Chronicle of Higher Education last week that there was still much more to come.

"(The ruling) is something our legal counsel had prepared us for, and something we think is very standard procedure," he said. "We'll prepare our response, which has to be submitted by June 10, and that will really reveal the strength of our position, and effectively show our hand."