- The Washington Times - Friday, January 31, 2003

A Bush administration athletic commission voted yesterday to ask the U.S. Education Department to find ways other than quotas to ensure that colleges and universities are not discriminating against women's sports programs.
But the 15-member Commission on Opportunity in Athletics voted down a recommendation to ban outright numerical formulas under Title IX federal mandates.
Instead, the panel voted 10-5 to ask Education Secretary Rod Paige to consider allowing schools to use student-interest surveys, rather than proportional quotas based on percentages of men and women enrolled, to determine how many teams must be offered for women compared to those for men.
The panel had previously voted 11-4 against the ban on quotas. "The problem is, there is a measure of trust," said Commissioner Deborah Yow, athletics director at the University of Maryland, in defense of a federal proportionality rule used to gauge whether college sports programs discriminate against women. The rule decrees that support for male and female athletics be proportional to the percentages of men and women enrolled in the schools. The civil rights enforcement allows a variance of 1 percent to 3 percent.
"Even when you can identify a discriminatory process, it is fraught with problems to get that remedied," she said. "That's why I gravitate toward a numerical formula. You know it when you can see it. It's an efficient process."
Commissioner Thomas B. Griffith, the panel's most outspoken opponent of quotas, said he agreed such formulas are efficient. "They're very efficient," said the general counsel for Brigham Young University in Utah. "But efficiency is not the value here. Fairness is the value here. When you use numeric formulas, you compromise fairness for efficiency."
Mr. Griffith said the 1972 Education Amendments that included Title IX specifically prohibited "preferential or disparate treatment to either sex because of an imbalance" in their respective numbers.
"Numeric formulas violate the intent of the law. They're morally wrong. They're unconstitutional," he said.
Title IX is part of the Education Amendments of 1972, intended to protect against discrimination based on sex in education programs or activities funded with federal money. The law is enforced by the Office for Civil Rights (OCR) at the Department of Education.
A majority of the commission agreed that the proportionality rule issued by the OCR in 1996 lacks sufficient flexibility to deal with constant changes in student populations.
Ms. Yow offered a recommendation, adopted 7-7 with one member absent, that federally funded schools covered by Title IX would be expected to allocate 50 percent of their sports "participation opportunities" for men and 50 percent for women, with a 2 percent to 3 percent variance in compliance with the standard.
Seven of the 26 recommendations considered by the panel yesterday involved the proportionality rule and related issues. Some of them were:
If a proportionality rule remains in force, the panel voted 15-0 that OCR "should clarify the meaning of 'substantial proportionality' and allow a reasonable variance while adhering to the nondiscriminatory tenets of Title IX."
On a 10-3 vote, the panel said the government should not make schools use the number of athletes on a team on the first day of the season for purposes of comparing "participation opportunities" for men's and women's teams. Instead, in consultation with OCR, an institution could establish that it has complied with the proportionality rule by showing that it had budgeted an equitable number of team slots for men and women compared with the school's enrollment ratio, the panel recommended.
Students without full or partial scholarships or who were not recruited for school teams would be classified as "walk-ons" and not counted in the proportionality calculations under a recommendation adopted 8-5, with two commissioners absent.
The panel voted 9-4 to exclude "non-traditional students" generally students older than age 23 who have returned to college to complete their degree and have no interest in joining sports teams from being counted in the proportionality calculations.
The commission also voted 12-1 that OCR "should provide clear, consistent and understandable written guidelines for implementation of Title IX and make every effort to ensure that the guidelines are understood through a national education effort." The panel said OCR should ensure that Title IX enforcement and education "is consistent across all regional offices."
The panel ended its two days of deliberations yesterday at the Hotel Washington in the District. It will send a final report of its nonbinding recommendations to Mr. Paige, who will then decide whether to implement them.

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