- The Washington Times - Monday, June 3, 2002

The latest federal appeals court decision allowing colleges to cancel men's wrestling and swimming teams to meet federal sex quotas was issued in part to avoid creating a "conflict" among interpretations that could bring Supreme Court review.
The 8th U.S. Circuit Court of Appeals ruled 3-0 on Thursday that Title IX the 1972 law compelling equal opportunity in universities "does not require proportionality [but] does not forbid it either" and upheld the University of North Dakota's 1998 decision to cancel men's wrestling to balance male-female sports enrollments.
"The gender make-up of athletic participation is certainly relevant to a determination of whether a school is in compliance with Title IX," the St. Louis-based court said in endorsing the growing practice of shutting down men's teams to achieve equal numbers.
General Accounting Office figures show more than 350 men's teams have been abolished in the law's 30-year span.
The unanimous panel noted similar rulings by seven other appeals court circuits, but acknowledged it was not compelled to follow suit.
"Although these cases do not bind our court, we find their reasoning sound, and we are, in any event, reluctant to create a conflict within the circuits on the issue," said the opinion written by Judge Richard S. Arnold, who noted that the Supreme Court often intervenes when circuit courts disagree on the meaning of a federal law.
Judges Pasco M. Bowman II, a 1983 appointee of President Reagan, and David R. Hansen, nominated by President Bush in 1991, concurred in the decision of Judge Arnold, a 1980 choice of President Carter.
The court said it strives to agree with other circuits, "thus avoiding unnecessary burdens on the Supreme Court docket." The high court has refused twice to hear this Title IX question due to the lack of a conflict among circuit courts.
The National Wrestling Coaches Association (NWCA) has filed a separate lawsuit in D.C. federal court to stop the latest interpretation of Title IX, which counts the ratio of female-to-male participants rather than the ratio of available slots.
Justice Department lawyers last week said that case was filed beyond the statute of limitations and also questioned the coaches' standing to go into court along with the Committee to Save Bucknell Wrestling, the Marquette Wrestling Club, the Yale Wrestling Association, and the National Coalition for Athletics Equity.
The 8th Circuit's stated purpose of avoiding Supreme Court review surprised Lawrence J. Joseph, lead counsel for the coalition of wrestling coaches that sued in D.C. federal court.
He said that the St. Louis case likely will not affect the D.C. lawsuit, which attacks the way the Department of Education modified its rules in 1996.
Mr. Joseph said the original 1979 rules were modified in an informal way in 1996 but continue to be based on statistics for the 1976-77 academic year showing an imbalance of almost 3 to 1 in the number of men in university sports over the number of women.
"This policy, as crazy as it seems to me, is based on discrimination in the '76-'77 school year and may have made sense back in 1979, but you can't extend it forward in time indefinitely without revisiting the assumption that the discrimination they were trying to address is over," said Mr. Joseph, of the D.C. office of the law firm McKenna & Cuneo.
National Collegiate Athletic Association figures show that in the 1976-77 academic year 62,886 women signed up for university sports compared with 168,136 men. For the 2000-2001 school year there were 150,916 women and 208,866 men, says the NCAA, which is not involved in the case.
Coaches argue that the number of "opportunities" required by the original law is fairly balanced, but that women don't seek to fill those slots as vigorously as men do, so actual participation lags.
"What we're doing is different," said Mr. Joseph of the D.C. case, which focuses on how government agencies make rules. "These rules are so flawed from what is required by the Administrative Procedure Act that the rules are either null and void, or not effective yet."
The original regulations required "equal athletic opportunities" that accommodate "interests and abilities of both sexes." They also set equality standards for university sports facilities, equipment, housing, scheduling, dining services, travel, expenses, publicity, coaches and tutors.
Therefore, the coaches' lawsuit claims, some men's college sports face extinction because women won't join teams provided for them.
Donna Lopiano, executive director of the Women's Sports Foundation, said blaming Title IX for cutting men's sports "pits the victims against the victims" men who lose teams against women who never had them.
"Women still have 30 percent fewer opportunities and less scholarship money, while the football team is laughing all the way to the bank," Ms. Lopiano said.

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