A nonprofit advocacy group has amended an earlier lawsuit against the U.S. Government Accountability Office (GAO), alleging that a 2001 report on the application and effects of Title IX on intercollegiate athletics was flawed.

In the suit, the College Sports Council (CSC), a coalition of five national sports organizations, accuses the GAO of falsely inflating gains in college sports for both men and women. Eric Pearson, executive director of the CSC, said the numbers in the report are "so flawed they don't even stand up to the standards and practices for accountants." He said in fact that he would like to see the GAO research and produce a new report using more accurate methodology.

The lawsuit alleges the report titled, "Intercollegiate Athletics: Four-Year Colleges' Experiences Adding and Discontinuing Teams," is misleading because while it reports an increase in both men's and women's intercollegiate athletics teams in both the NCAA and the National Association for Intercollegiate Athletics (NAIA), the numbers are distorted because 134 more institutions were included in the latter part of the survey (1998-99) than were involved in the initial, baseline sample taken in 1981-82. Because of the addition of schools, the report shows an increase in the number of teams while no actual increase in opportunity for male student-athletes exists, said Mike Moyer, executive director of the National Wrestling Coaches Association.

"It understates the number of men's teams that have been eliminated and it overstates the number of women's teams that have been added," Moyer said. As an example, he said he had coached wrestling at Chowan Junior College before it became Chowan College and joined NCAA Division III. When Chowan joined the NCAA, it brought with it six men's athletics teams.

"The GAO report shows those six men's teams as six new teams, when in fact, they pre-existed all along," Moyer said. The same thing happened when women's teams left the Association of Intercollegiate Athletics for Women and joined the NCAA and NAIA, he said.

The GAO report was a major piece of research used by the Commission on Opportunity in Athletics, a group appointed by President George W. Bush to study the effects of Title IX over its 30-year existence and whether any reform was necessary. The CSC alleges that because the report was flawed, the commission did not have accurate information.

The commission, formed by the Department of Education in July 2002, issued its final report in February 2003, making a series of recommendations regarding the commitment, clarity, fairness and enforcement of Title IX policies. Among those recommendations, the commission suggested the government make clear that cutting teams in order to demonstrate compliance was "disfavored" and proposing new ways of compliance with Title IX. Rod Paige, then-U.S. Secretary of Education, elected to act on only the recommendations that received unanimous support by all commission members -- neither the suggestions for new methods of conformity nor the disfavoring of cutting teams were unanimous.

Conflicting views

Pearson said the GAO is maintaining that the CSC does not have the right to sue in this particular case because the CSC is not a client of the GAO. He likened the flaws in the GAO report used by the commission and by members of Congress and the Bush administration to flaws in oil giant Enron's accounting practices.

"We maintain that just as Enron's accountants failed to follow accounting standards, so did (the GAO)," Pearson said. "They basically in that report merged numbers to cover losses, which is exactly what Enron did."

Christine Grant, associate professor and former director of women's athletics at the University of Iowa, defended the report and the GAO's work on it.

"The GAO is an independent agency. They are not biased toward men or women. They are a government agency devoted to research. They've got some of the best researchers in the entire country, in fact in the entire world," she said. "They've done a solid piece of research and actually the findings are backed by the NCAA findings as well. I don't think there's any merit (to the lawsuit). I really think (the CSC) is just trying to slow the process because the end is inevitable."

Officials believe a new report would help advance the CSC's efforts to eliminate the proportionality prong of the "three-part test" interpretation of Title IX law as it applies to athletics. The test offers three options to institutions for complying with the policy. The proportionality prong declares that an institution may provide opportunities for athletics participation for men and women in numbers that are substantially proportionate to their undergraduate enrollment. The other prongs are the institution demonstrating a history of commitment to expanding opportunities for the under-represented gender and the school proving the skills and interests of the under-represented gender are currently fulfilled by its athletics program.

Pearson said the proportionality prong has led to "roster management," a procedure he said discriminates against men, which Title IX specifically forbids.

"Title IX says you can't discriminate on the basis of gender. But the way it's regulated, it specifically allows colleges to discriminate on the basis of gender. That's what roster management is," he said. "The irony is that we have a law that says you cannot discriminate on the basis of gender, and roster management is right now legal because of proportionality. So you can discriminate against someone on the basis of gender and you're covered because you're complying with Title IX. That's the way the judges have looked at it."

Previous lawsuits filed

Jocelyn Samuels, vice-president and director of educational opportunities for the National Women's Law Center, said she believes the CSC will continue to be unsuccessful in its efforts to invalidate the Title IX policies.

"Every federal appellate court that has considered the merits of those policies has upheld them," she said. "Both the lower court and the (Washington) D.C. Circuit Court resoundingly said they could not show that Title IX athletics policies were responsible for the elimination of any men's teams, and they could not show that invalidating the policies would lead to the reinstatement of those teams."

The CSC has filed numerous suits against the Department of Education regarding Title IX policy, dating back to an initial suit filed in January 2002 that claims the implementation of Title IX mandates the very discrimination it is designed to prevent. Samuels said this and other suits that have been settled or withdrawn over the years are "an attempt to make an end run around the impact of the D.C. Circuit's decision, which is that they have no standing to file this kind of suit in a federal court."

"We adamantly disagree with their arguments. Both the courts and the administration as it turns out have rejected them as well," she said. "Whether this is a last-ditch attempt to try to promote some of the same kinds of changes that have been rebuffed consistently over the course of the last 25 years or more since the policies were adopted, I think that it is not so much a change in strategy as continuing to knock at the same doors that have been closed to them over time, and closed for good reason."

Pearson said the latest suit does not represent a change in strategy for the CSC so much as it does a dispute over simple facts. If nothing else, he said, the suit will continue to keep the topic in the public eye and on the table for discussion.

"We had no choice but to challenge the GAO report. It was such a prime source of misinformation," he said. "People are becoming more and more aware that this great law, which everybody understands is good for women, also, unfortunately, has a downside to it. We've got to try to find some way to fix it so it continues to affect women, but doesn't harm men."

Institutional decisions

Moyer said you don't have to look far to find a prime example of Title IX harming men. He called the Marquette University wrestling program the "poster child" for Title IX discrimination. Marquette ceased funding its wrestling program in 1993-94, but a group of private supporters and alumni pooled resources and kept the program running without financial support from Marquette until 2001, when the institution cut the program. Moyer said the cut was because of proportionality.

"How did dropping that wrestling program benefit women on campus? If that wasn't intentional discrimination against men, then what was it? The only reason they were eliminated is because they were men," he said. "Right now, the problem is that as long as (schools) know there's a chance they can get sued, they're going to go to the safe harbor. They're going to go to proportionality. That's the only surefire way to know that they won't wind up in court. By leaning on the other two prongs, that window is always open for a lawsuit."

Grant said she understands the issues raised by Moyer and others in the wrestling community -- though she believes the loss of those programs has nothing to do with Title IX.

"I understand why they're concerned. They see their sport gradually disappearing, but the reality is that happens in sports. Who could have predicted the rise in soccer to the extent that it has just gone through the roof in this country? Who would have predicted that?" she said. "Unfortunately, the reverse is also true, that sports actually decline in popularity at certain times, and for the last 20 years, the number of wrestling teams has been going down, it really has. I can't fully explain it. ... I feel sorry for the wrestlers that the popularity of their sport is declining, but that's a sad fact."

The future of the Title IX debate ends in different places, depending on who is asked. Many of those who would like to see Title IX policies remain untouched believe that past court rulings and inaction by the federal government indicate a strong support of the law as it is currently interpreted and applied.

Samuels said she believes the past will guide the future rulings of the courts and actions of future administrations that Title IX polices are "fair, flexible and valid," though she believes that disputes over the law will continue.

"Since Title IX was enacted, there have been efforts to undermine and eliminate its application to athletics both through Congress and through the courts and through administrative challenges of the sort that culminated in the commission work two years ago. None of those has been successful," she said. "But that track record of uniform rejection does not seem to have dissuaded those that would advocate for its demise. If the past is any guide, these kinds of challenges will continue."

Though the reform movement has suffered many setbacks, Pearson is adamant that the group has not finished its work.

"It's a long process to change federal regulations. It's not done overnight. We're prepared to go as long as it takes. The College Sports Council will be here in 10 years if that's what it takes," he said.