Seven months, six public meetings and $700,000 in government funds later, it's not clear how -- or if -- the Department of Education plans to change Title IX enforcement.

The Commission on Opportunity in Athletics, first named by Education Secretary Rod Paige in June 2002, concluded its work last month in Washington, D.C., when it met for the last time and formally voted on both its findings and its recommendations. The commission's report to the Secretary is scheduled for completion at the end of February.

Because the commission formally voted on recommendations, it seems logical to assume that it has provided the Secretary with a clear direction or at least some basic preferences.

That is not the case, partly because the commission has forwarded several contradicting recommendations and partly because the commission also has forwarded at least one recommendation on which the commissioners were deadlocked.

And perhaps the most surprising recommendation to many observers has been one urging the Department of Education to explore additional ways of demonstrating compliance with Title IX beyond the existing three-part test. That recommendation alone makes it impossible to predict what direction the Secretary may take. As has been stated from the start of the process, Paige ultimately is not bound by the commission's report or its recommendations.

The commission has not yet provided a public draft of its report -- nor is it expected to do so before the report being sent to the Secretary -- so observers can only base their reactions on what the commission said at its January 28-29 public meeting and the limited materials that were released to the media at that time.

"We have concerns about anything that would water down the original intent of Title IX as civil-rights law to increase opportunities for women as the underrepresented gender," said Judy Sweet, NCAA vice-president and senior woman administrator. "Several of the proposals on the table right now could do that. And several of the proposals on the table right now are so unclear, it's hard to determine what their potential effects might be."

NCAA President Myles Brand is watching the Department of Education with interest.

"In my view, Title IX is not broken and does not require fixing," Brand said. "There is important work still to be done if we are to ensure that the values of intercollegiate athletics are equally available for women. Now is not the time to say, 'Close enough' and watch all our work to date be eroded."

Perhaps the most notable recommendation the commission did not forward was the one suggested by Thomas Griffith, assistant secretary and general counsel at Brigham Young University. Griffith amended an existing proposal and called for the removal of the proportionality prong (part one of the three-part test) as an option, recommending that the "Office for Civil Rights should not use numeric formulas to determine whether an institution is in compliance with Title IX." But when the issue came to a vote, opponents outnumbered supporters, 11-4.

Still, those who oppose proportionality have indicated that they see promise in what the commission has recommended.

"Don't get me wrong, we'd love the commission to say proportionality is abolished, but there were a lot of positives that came out of the report," said Mike Moyer, executive director of the National Wrestling Coaches Association to media after the commission meeting.

Moyer is part of the College Sports Council, a group of coaches organizations that has sued the Department of Education alleging that proportionality has harmed men. (See the Briefly section of the October 28, 2002, issue of The NCAA News.)

"We are confident there will be a more reasonable interpretation," Moyer said after the commission meeting. "Our lawsuit is not about funding. It's about participation."

And as Ted Leland, athletics director at Stanford University and co-chair of the commission, has said several times, the commission report is really the first step.

"Let us remember, the commission is not the last word on Title IX," he said as the commission's final meeting opened. "Rather, the commission is the first step in what will be a long process."

Moyer seemed to echo those words after the meeting, when he told the media. "Neither side got everything they wanted. But that is part of the journey, and obviously, the journey is not over."

Changes to proportionality?

Many of the commission's recommendations focus on changing the proportionality prong. Others seemed to encourage relying on interests tests as a sole measure of Title IX compliance. Some include:

Changing the proportionality prong so that participation opportunities would be allotted 50 percent for women and 50 percent for men (regardless of the percentage of men and women in the undergraduate population), with a 2 to 3 percent variance permitted. This recommendation, advocated by Deborah Yow, athletics director at the University of Maryland, College Park, also was amended by Yow before voting. The previous recommendation had called for a 5 to 7 percent variance. The vote on the amended recommendation resulted in a 7-7 tie (Lisa Graham Keegan was absent for the vote). Despite the deadlock, the co-chairs ruled that the recommendation would be forwarded.

Permitting institutions to establish a certain number of slots for each team and then counting the slots rather than the actual participants when calculating proportionality.

Excluding nonscholarship players and "non-recruited" walk-ons from counting toward participation totals.

Excluding "nontraditional" students from the undergraduate population when measuring the gender proportion of the undergraduate student body against which participation opportunities are compared. (This is significant because a greater proportion of nontraditional students are thought to be female. Under this proposal, an institution that is primarily a "commuter" school could see its female undergraduate enrollment shift greatly, thus potentially drastically changing the number of participation opportunities the school would be required to provide under proportionality.)

Permitting institutions to conduct interest surveys as a way of demonstrating compliance with Title IX. (A proposed amendment that would have suggested limiting interest surveys to prong three, where they currently are used, failed, 6-9.)

Calling for the Office for Civil Rights to re-examine its regulations regarding private funding and how that funding counts under Title IX. Currently, an institution can accept private funding for any program but that funding counts in the aggregate funds devoted to a particular gender.

Encouraging the redesign of the Equity in Athletics Disclosure Act.

Commission meeting highlights

Commission co-Chair Leland had referred to an earlier meeting of the commission as like "herding cats," but the last commission meeting might have been more like herding cats that have bared their claws. The first hour and 15 minutes of the meeting was devoted to commissioners arguing over the process they would follow for the rest of the meeting and the submission of the report. Several commissioners argued against Leland's announcement that the report would not include minority views on recommendations that had been defeated.

"I participate under protest," said commission member Donna de Varona, a broadcaster and chair of the USOC Government Relations Committee. "I was of the understanding that we would be presenting competing arguments."

Commissioner Julie Foudy, a professional soccer player, also argued that the group would be missing an important step without a minority report.

"Essentially, you're putting a gag order on anyone who doesn't agree with the majority," she said. "That goes against everything this country stands for."

Leland responded that no one was gagging her, and the commission continued to debate the process for several minutes. Ultimately, the group seemed to decide that the minority view would be included but written by Department of Education staff.

Once the commission got down to reviewing the report, observers at the meeting were hard-pressed to keep up as those in the audience had no copy of the report for reference. Commissioners called out line numbers and proposed some changes without reading the original copy as the media and the public struggled to follow along. Members of the media had the advantage being provided with a few pages listing the draft findings and draft recommendations, but much of the discussion on the rationale and other parts of the report was simply impossible to follow.

Perhaps the most controversial recommendations were those dealing with proportionality. The commission reviewed all the recommendations pertaining to proportionality as a group and then went back over them for a vote.

Several times, commissioner Cary Groth asked that the commissioners review a copy of the OCR's 1996 Clarification, which contains the most recent interpretation of proportionality, but Leland did not permit her to distribute the document. Groth, the athletics director at Northern Illinois University, also called for an examination of the numerical effects of the proposals before the votes.

"I feel irresponsible if we were to vote on any of these proposals without looking at the numbers," she said. "The 1996 Clarification provides three examples (of permissible potential variance for proportionality) -- 1 percent, 3 percent and 5 percent. We all know that minimums become maximums."

Several commissioners also objected to presenting Secretary Paige with conflicting recommendations.

"I'm very troubled that we're going to come up with contradictory recommendations," said commissioner Rita Simon, professor of public affairs and law at American University. "On the whole, I think we should come up with a series of recommendations that could work together."

Ultimately, the commission retained the idea of submitting conflicting recommendations, which led to some proposals being amended and voted upon, and then also voted upon in their original form.

One such proposal was Recommendation 11. The recommendation as amended calls for education about the OCR's rules regarding private funding of particular sports. Gerald Reynolds, an ex officio member of the commission and assistant secretary of education for civil rights, also asked that the commission create and then vote on an 11B, which calls for the reexamination of the OCR's regulations regarding private funding.

Recommendations about interest surveys also received a great deal of discussion. Groth, de Varona and Foudy argued that interest surveys had a place in prong three of the three-part test but not in other prongs determining Title IX compliance.

Commissioner and co-Chair Cynthia Cooper's proposal that interest surveys replace proportionality was defeated, 7-8, while Simon's broader proposal that ongoing interest surveys be used to determine Title IX compliance passed, 10-5.

Another area of contention was a study included in the draft report that none of the commissioners had previously seen or discussed. The study, authored by the Independent Women's Forum, purportedly found that women at some all-women's colleges participated at a low rate in intercollegiate athletics, thus leading to the conclusion that women were less interested in athletics than men. Simon argued that the study should be in the final report because it helped illustrate her point that women are less interested.

The commission moved slowly on the second day, and Simon had to leave before the voting was over. Several times, Leland urged commissioners to limit their remarks or close debate. At one point, he expressed his obvious frustration with the commissioners' slow pace through the agenda.

"We've got to move forward. I'm about ready to hit my forehead on the table. I feel like this is the Central Committee of the Communist Party," he said.

Many critical of recommendations

Several groups have weighed in on the draft recommendations. Some have agreed with Moyer, and others have not been so complimentary.

"If there is one thing that is very clear from today, it is that the commission sent a strong message to the White House that the current regulations don't work," said Eric Pearson of the College Sports Council. "Our work is still not done. We still need to be vigilant. We need the support of every athlete, coach and parent who cares about the athletes of the future."

Both the National Women's Law Center and the Women's Sports Foundation have issued statements warning of the possible effects of several of the recommendations.

"Over the vigorous objections of some commissioners, the commission approved recommendations that would drastically reduce the participation opportunities and scholarships to which women are entitled," said a statement from the National Women's Law Center.

"The most disappointing thing about this commission is that it has not done its homework," said Donna Lopiano, executive director of the Women's Sports Foundation. "The commission has failed to operate on the basis of an agreed-upon set of participation statistics; on a number of occasions it refused to read, discuss or accept the distribution of the 1996 Office for Civil Rights (document) it was proposing to amend; members failed to ask for or consider any data on the impact of proposals under consideration; and the group refused to accept the opinion of research experts that the use of interest surveys were nothing more than measures of attitudes that reflect gender stereotyping," she said. "The public deserved a better effort."

Connee Zotos, athletics director at Drew University, is among those concerned that the recommendations don't take into account the realities of programs that operate in Divisions III or II. Zotos is most concerned by the proposals regarding walk-ons (which could describe all Division III athletes since they receive no athletics aid) and not counting nontraditional students (toward the undergraduate population against which proportionality is measured).

"A lot of Division III and Division II institutions have very diverse populations," she said. "It's pretty absurd to have student-athletes on our teams who wouldn't even count."

Laurie Priest, athletics director at Mount Holyoke College, has been disappointed in the process in general, but she is angered that the Independent Women's Forum study that includes her school has made its way into the report and is cited as evidence that women are less interested in sports than men.

"The study is totally flawed. My own institution is cited as having 'only' 16.7 percent of our student body participating in intercollegiate athletics," Priest said. "What the IWF study fails to report is that Mount Holyoke has more than 320 women athletes participating in 15 intercollegiate sports -- and 200 women playing club sports --which rivals if not exceeds our NCAA Division III co-educational peer institutions participation levels.

"Left out from the study is the fact that interest here is very high and at the beginning of each sport season coaches are forced to cut student-athletes from teams to maintain manageable roster sizes and meet budget limitations."

Christine Grant, former longtime director of women's athletics at the University of Iowa -- now retired from that post -- and current professor in health and sport studies at the school, summed up the concerns of many when she said, "Title IX is a civil-rights law. This federal law prohibits discrimination. The current 1996 Clarification gives enough flexibility to allow for unintended deviations (from substantial proportionality) on a case-by-case basis.

"Many of these recommendations are, in effect, asking the government to decide on the degree of discrimination that will be practiced. That is a predetermined discriminatory practice. If these recommendations are successful, women are going to be underrepresented and underprivileged in perpetuity."

Preliminary recommendations of the Secretary's Commission on Opportunity in Athletics

(These recommendations are based on materials released to the media at the January 28-29 meetings of the commission and reflect on-site changes read by the commission. This is not necessarily the final wording of the recommendations. That final wording will not be available until the report is given to the Secretary of the Department of Education and released publicly, both of which are expected at the end of February.)

Recommendation 1

The Department of Education should reaffirm its strong commitment to equal opportunity and the elimination of discrimination for girls and boys, women and men. Approved by consensus.

Recommendation 2

Any clarification or policy interpretation should consider the recommendations that are approved by this commission, and substantive adjustments to current enforcement of Title IX should be developed through the normal federal rule-making process. Approved, 12-1.

Recommendation 3

The Department of Education's Office for Civil Rights should provide clear, consistent and understandable written guidelines for implementation of Title IX and make every effort to ensure that the guidelines are understood, though a national education effort. The Office for Civil Rights should ensure that enforcement of and education about Title IX is consistent across all regional offices. Approved by consensus.

Recommendation 4

The Office for Civil Rights should not, directly or indirectly, change current policies in ways that would undermine Title IX enforcement regarding nondiscriminatory treatment in participation, support services and scholarships. Approved by consensus.

Recommendation 5

The Office for Civil Rights should make clear that cutting teams in order to demonstrate compliance with Title IX is a disfavored practice. Approved by consensus.

Recommendation 6

The Office for Civil Rights should aggressively enforce Title IX standards, including implementing sanctions for institutions that do not comply. The Department of Education should also explore ways to encourage Title IX compliance rather than merely threatening sanctions. Approved by consensus.

Recommendation 7

The Department of Education should encourage education leaders and sport leaders to promote male and female programs to encourage student interest in athletics at the high-school level, explore the possibility of a pilot program to encourage participation in physical education and explore ways of encouraging women to walk on to teams. Approved by consensus.

Recommendation 8

The Department of Education should encourage educational institutions and national athletics governance organizations to address the issue of reducing excessive expenditures in intercollegiate athletics. Possible areas to explore might include an antitrust exemption for college athletics. Approved, 12-1.

Recommendation 9A

The Department of Education should encourage the redesign of the Equity in Athletics Disclosure Act so that it provides the public with a relevant and noncumbersome tool to measure Title IX compliance on campus. Approved by consensus.

Recommendation 9B

The Department of Education should encourage Congress to repeal the Equity in Athletics Disclosure Act report requirement. Defeated, 6-8.

Recommendation 10

The Office for Civil Rights should disseminate information on the criteria it uses to help schools determine whether activities they offer qualify as athletics opportunities. Approved by consensus.

Recommendation 11A

The Office for Civil Rights should educate educational institutions about the standards governing private funding of particular sports aimed at preventing those sports from being dropped or to allow specific teams to be added. Approved, 10-3.

Recommendation 11B

The Office for Civil Rights should reexamine its regulations regarding private funding of particular sports aimed at preventing those sports from being dropped or to allow specific teams to be added. Approved, 10-2.

Recommendation 12

The Department of Education should encourage the NCAA to review its scholarships and other guidelines to determine if they adequate promote or hinder athletics participation opportunities. Approved by consensus.

Recommendation 13

Institutions governed by Title IX standards, as one approach to meeting the standard of proportionality, may allot 50 percent of their participation opportunities for men and 50 percent for women. A variance of 2 to 3 percent in compliance with this standard would then be allowed. Commission tied, 7-7, with Lisa Graham Keegan missing the vote. The chairs ruled that all recommendations receiving a tie vote would be forwarded to the Secretary of Education.

Recommendation 14

The first part of the three-part test for demonstrating compliance with Title IX's participation standard should be amended to denote the current measure of proportionality as part "1(a)" and then creating a new test denoted as "1(b)," which would allow colleges and universities to establish compliance if the male/female ratio in their athletics participation is within 3 percent of the male/female ratio of high-school participation within an appropriately defined geographical region. Defeated, 0-14, after Bob Bowlsby, whose name appeared with the recommendation, asked to withdraw it.

Recommendation 15A

The OCR should not use numeric formulas to determine whether an institution is in compliance with Title IX. Defeated, 4-11.

Recommendation 15B

If substantial proportionality is retained as a way of complying with Title IX, the Office for Civil Rights should clarify the meaning of substantial proportionality and allow for a reasonable variance in the relative ratio of athletics participation of men and women while adhering to the nondiscrimination tenets of Title IX. Approved, 15-0.

Recommendation 16

The Office for Civil rights should consider a different way of measuring participation opportunities for purposes of allowing an institution to demonstrate that it has complied with the first part of the three-part test. An institution could establish that it has complied with the first part of the test by showing that the available slots for men and women as demonstrated by the predetermined number of participants for each team offered by the institution, is proportional to the male/female ratio in enrollment. Approved, 10-3, with Lisa Graham Keegan and Rita Simon absent.

Recommendation 17

In providing assistance, the Office for Civil rights should advise schools, as necessary, that walk-on opportunities are not limited for schools that can demonstrate compliance with the second or third parts of the three-part test. Approved by consensus.

Recommendation 18

Any student who is not a recipient of a full or partial scholarship or who is a non-recruited walk-on will be defined as a walk-on or a nonscholarship student-athlete. For the purpose of calculating proportionality with the male/female ratio of enrollment in both scholarships and participation, these ratios will exclude such individuals. Proportionality ratios will be calculated through a comparison of full or partial scholarship recipients and recruited walk-ons. Approved, 8-5, with Lisa Graham Keegan and Rita Simon absent.

Recommendation 19

The Office for Civil Rights should explore the possibility of allowing institutions to conduct scientifically based surveys to determine the actual athletics interest of its student body on a continual basis. The number of interested students would then become the measure for determining whether an institution is in compliance with the proportionality requirement of the first part of the three-part test, that is, if 50 percent of interested students are female, 50 percent of athletics participation opportunities would then need to be provided for females. Defeated, 7-8.

Recommendation 20

The Office for Civil Rights should allow institutions to conduct continuous interest surveys on a regular basis as a way of demonstrating compliance with Title IX. The Office should specify the criteria necessary for conducting such a survey in a way that is clear and understandable. Approved 10-5.

Recommendation 21

The Office for Civil Rights should study the possibility of allowing institutions to demonstrate that they are in compliance with the third part of the three-part test by comparing the ratio of male/female athletics participation at the institution with the demonstrated interests and abilities shown by regional, state or national youth participation rates (including national governing bodies that offer sports outside the school system) or high-school participation rates or by the interest levels indicated in surveys of prospective or enrolled students at that institution. Approved by consensus.

Recommendation 22

In demonstrating compliance with the proportionality requirement of the first part of the three-part test, the male/female ratio of athletics participation should be measured against the male/female ratio of an institution's undergraduate population minus nontraditional students. Approved, 9-4.

Recommendation 23

The designation of one part of the three-part test as a "safe harbor" should be abandoned in favor of a way of demonstrating compliance with Title IX's participation requirement that treats each part of the test equally. In addition, the evaluation of compliance should include looking at all three parts of the test, in aggregate or in balance, as well as individually. Approved by consensus.

Recommendation 24

The Office for Civil Rights should be urged to consider reshaping the second part of the three-part test, including by designating a point at which a school can no longer establish compliance through this part. Approved by consensus.

Recommendation 25

Additional ways of demonstrating compliance with Title IX beyond the existing three-part test should be explored by the Department of Education. Approved, 12-1, with Lisa Graham Keegan and Rita Simon absent.