- The Washington Times - Saturday, July 12, 2003

The Bush administration announced yesterday that colleges and universities no longer must prove “substantially proportionate” participation of men and women in sports programs as the main way to comply with the federal Title IX sex-discrimination ban.

The ruling bowed to wishes of many college presidents, coaches and athletic groups who asked the administration to move away from quotas governing intercollegiate sports.

In a letter to college presidents and other officials yesterday, the U.S. Education Department’s Office of Civil Rights abandoned a 1996 Clinton administration ruling that “proportionality” — equal numbers of men and women in college sports programs — was the most important component of a three-part test for compliance with Title IX.

Two other tests include a college’s history of expanding sports programs so men and women have equal opportunity to participate, and whether the programs have “fully and effectively accommodated” the interests and abilities of all students.

“If [colleges and universities] think we have our thumbs on the scale, … we need to clear up that misperception,” Gerald Reynolds, the department’s assistant secretary for civil rights told reporters in a telephone news conference.

Under the new ruling, there will be “no numerical standard,” Mr. Reynolds said. Whether or not college sports programs discriminate against men or women will be determined by “particularized facts” on a case-by-case basis, he said.

“There’s a diverse array of schools out there,” said Brian Jones, the department’s general counsel. “Schools may not, as a practical matter, be able to meet the proportionality prong, not because of a discriminatory animus, but as a matter of demographics. They just may not be able to get there.”

One problem cited for many schools, particularly community colleges, is the large number of older men and women — referred to as “nontraditional” students — who are going back to get their degrees after their children have grown and left home, but have no interest in playing intercollegiate sports with 20-year-olds.

Critics said inclusion of older students who were uninterested in playing sports improperly skewed the proportionality test, which has required elimination of numerous men’s programs to accommodate financing of programs for women.

“There are many men’s wrestling, gymnastics, swimming teams that have gone away,” said Bob Bowlsby, the University of Iowa’s athletics director for 12 seasons, at a Title IX review commission appointed last June by Education Secretary Rod Paige. “No one anywhere is adding men’s teams.”

Because of changing demographics, colleges can conduct student surveys to determine interest in athletics and use the results to prove compliance with Title IX if the sexes are disproportionately represented in sports programs, Mr. Jones said.

The change, accompanied with an administration pledge to continue strict enforcement of Title IX, was applauded by a leading feminist group.

“The National Women’s Law Center welcomes the Department of Education’s strong reconfirmation of current Title IX athletics policies,” said Marcia D. Greenberger, the center’s co-president.

“This action comes after a yearlong review of Title IX, the law that bars sex discrimination in education, but is best known for creating an explosion in women’s and girls’ sports,” she said. “This is a huge victory for women and girls everywhere — and the men and boys who care about them. We are relieved that the Department of Education heard and heeded the millions of voices in support of Title IX.”

Mr. Reynolds said his letter was intended to “clarify” a Clinton administration ruling in 1996 that schools could prove compliance with Title IX if intercollegiate-level participation opportunities for men and women students were provided “in numbers substantially proportionate to their respective enrollments.”

In a 1996 letter, the Education Department’s Office of Civil Rights (OCR) called the proportionality test a “safe harbor” for college sports programs, which Mr. Reynolds said overshadowed the other two tests that permit men or women to be underrepresented in particular intercollegiate sports programs under special circumstances.

Those other two tests state that underrepresentation is permitted if:

• “The institution can show a history and continuing practice of [sports] program expansion, which is demonstrably responsive to the developing interests and abilities of that sex.”

• Even if the school has no history of expanding the program, “it can be demonstrated that the interests and abilities of the members of that sex have been fully and effectively accommodated by the present program.”

Mr. Reynolds and Mr. Jones said the administration, under the new ruling, will give equal force to all three parts of the Title IX test. The clarification letter emphasized that none of the three parts is more important than another.

“OCR encourages schools to take advantage of its flexibility, and to consider which of the three prongs best suits their individual situations,” said Mr. Reynolds’ letter to college and university officials.

“All three prongs have been used successfully by schools to comply with Title IX, and the test offers three separate ways of assessing whether schools are providing equal opportunities to their male and female students to participate in athletics,” the letter said.

“If a school does not satisfy the ‘substantial proportionality’ prong, it would still satisfy the three-prong test if it maintains a history and continuing practice of program expansion for the underrepresented sex, or if ‘the interests and abilities of the members of [the under-represented] sex have been fully and effectively accommodated by the present program.’ Each of the three prongs is thus a valid, alternative way for schools to comply with Title IX.”

The letter emphasized the administration’s strong continued support for Title IX enforcement.

“Since its enactment in 1972, Title IX has produced significant advancement in athletic opportunities for women and girls across the nation,” Mr. Reynolds said in the letter. “Recognizing that more remains to be done, the Bush administration is firmly committed to building on this legacy and continuing the progress that Title IX has brought toward true equality of opportunity for male and female student-athletes in America.”

Mr. Jones said department officials and the Title IX review commission appointed by Mr. Paige last June found “a great deal of passion and contention” in hearings over the Clinton administration’s guidance that the proportionality test was more important than the other two tests.

But he said that the Bush administration has now succeeded in bringing greater clarity about enforcement of Title IX.

The Title IX review commission considered the prospect of allowing schools to exclude nontraditional students from their enrollment count when proportional sports participation was documented.

The commission voted to ask the department to find ways other than quotas to ensure that colleges and universities are not discriminating against women’s sports programs, but voted against an outright ban on the use of numeric quotas. The panel submitted its final report to Mr. Paige on Feb. 26.

“The commission unanimously voted that institutions ought to be able to use some sort of survey instrument to determine the interest of women” in intercollegiate sports, Mr. Jones said. “It actually is an existing policy, the ability to use survey instruments more effectively” to determine compliance with sex nondiscrimination provisions of Title IX.

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